F8773S 
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«► 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


,o^' 


rOlD^   ^C^iC'TTIOITS,   J^JDIGIAL  .UID  RROBAT'^  S'lL^s/  1877, 


^VOID 

EXECUTION,  JUDICIAL  AND  PROBATE 


sales/ 

— AJfD  THE   LEGAL   AND  EQUITABLE — 


EIGHTS  OF  PUECHASEES  THEEEAT, 


— AND   THE — 


CONSTITUTIONALITY  OF  SPECIAL  LEGISLATION 


VALroATING    VOID    SALES    AND    AUTHORIZING    INVOLUN- 
TARY SALES  IN  THE  ABSENCE  OF  JUDICIAL 
PROCEEDINGS. 


By  a.  C.  freeman, 


AuTHOu  OF  Treatises  on  "Judoments,"  ''Executions,"  "Co- 
tenancy AND  Partition."  Etc. 


ST.  LOUIS: 

thp:  ckntkal  law  journal. 

]H77. 


I 

1^77 


Entered  according  to  Act  of  Congress,  in  the  year  1877,  by 

A.  0.  FHKEMAN, 

In  the  office  of  Die  Libianiin  of  Congress  at  Washington. 


MAVNARD  &  TEI)KOi;i),    LAW  PRINTERS. 
ST.   LOUIS. 


V 


TAIiLE  OF  CASP]S. 


[The  references  are  to  sections.] 


A. 


Abbott  V.  Cobiun, 
Ackley  v.  Dygert, 
Adams  v.  Jeliiies, 
Adams  v.  Norris, 
Adams  v.  Palmer, 
Adams  v.  Smith, 
Alabama  Conference  v.  Price, 
Ala.  L.  I.  &  T.  Co.  V.  Boykin, 
Anderson  v.  Green, 
Anderson  v.  Turner, 
Andrews  v.  Avery, 
Andrews  v.  Roberts, 
Andrews  v.  Russell, 
Andrews  v.  Sootton, 
Arnold  v.  Cord. 
Ashurst  V.  Ashurst, 
Atkins  V.  Kinnan, 

B. 


12, 


4 

17 

15 

4 

59 

47 

11 

58 

33 

9 

4 

1 

55 

1 

47 

32 

11,  20,  45 


Babbitt  v.  Doe,  16 

Babcock  v.  Cobb,  22 

Bagley  v.  Ward,  24 

Bailey  v.  Robinson,  33 

Bank  v.  Dudley,  30 

Bank  v.  Tra|)ier,  31 

Barbee  v.  Perkins,  20 
Barker,  ex  parte,                        2,  10 

Barnes  v.  Morris.  44 

Barrett  v.  Cliurchill,  46 

Barrett  v.  Garney,  4 
Barron  v.  Mayor  of  Baltimore.   00 

Barter;  v.  T(»inpkins,  40 

Bartlt'tt  V.  .Fudd,  53 

Bartlett  v.  Sutherland,  9 

Bass(;tt  V.  Ivoekwood,  40 

Beach  v.  Walker,  58 

Beal  V.  Harmon,  1 1 


Beard  v.  Rowan, 

9 

Beam-egard  v.  New  Orleans, 

15 

Beckett  v.  Selover, 

4.  5, 

20 

Bell's  Appeal. 

9 

Bennett,  ex  parte. 

2 

Benson  v.  Cilley, 

8, 

15 

Bentley  v.  Long, 

50 

Bentz's  Est.. 

13 

Bethel  v.  Bethel, 

42 

Bigelow  V.  Bigelow, 

4 

Blackman  v.  Banman, 

22 

Blair,  ex  parte. 

9 

Bland  v.  Muucaster, 

!J, 

28 

Blodgett  V.  Hitt, 

16,  28, 

51 

Bloom  V.  Burdick, 

11,  12, 

22 

Blood  V.  Ilayman, 

39 

Bobb  V.  Barnum, 

45 

Boggs  V.  Hargrave, 

47 

Bouipart  v.  Lucas, 

11 

Boon  V.  Bowers, 

66 

Booth  V.  Booth, 

58 

Boring  v.  Lemmon, 

48 

Bouldiii  V.  Ewart, 

37 

Bowen  v.  Bond, 

13 

14 

Boyce  v.  Sinclair, 

58 

Boyd  V.  Blankman, 

1,  20 

33 

Hraddee  v.  Bruwntield, 

55 

Branham  v.  San  Jose, 

47 

Bree  v.  Bree, 

12 

,18 

Brenham  v.  Davidson, 

64 

Brenham  v.  Story, 

70 

Brevoort  v.  Grace, 

70 

Hright  V.  Boyd, 

51 

53 

Brinton  v.  Seevers, 

59 

lirobst  V.  Brock, 

50 

Brock  V.  Frank, 

4 

Hronncr  v.  Greenlee, 

41 

I'.ioim  V.  Hroim, 

20 

I'.rowii  V.  Christie, 

:;o 

(i707p9 


TARLE    OF    CASES. 


ISrowii  V.  (iiliiuH-, 
r>io\vii  V.  T^ane, 
l>rt>iii:htoii  V.  Bradley, 
liull.  Matter  of, 
Biirdott  V.  Silsbce, 
Burns  v.  Hamilton. 
Burton  v.  Lios, 

C. 

Calder  v.  Bull. 
Canijiboll  v.  Brown. 
Campliell  v.  Knights, 
Clark  V.  Thompson, 
Clark  V.  Van  Surlay, 
Carpenter  v.  Pennsylvania, 
Carjjenter  v.  Slierfy, 
Carroll  v.  Olmstead, 
Carter  v.  Wangh, 
Castleman  v.  Belfe. 
Chambers  v.  Cochran. 
Chambers  v.  Jones,  51, 

Chandler  v.  Northrop, 
Chapman  v.  Brooklyn, 
Chapman  v.  Harwood, 
Chase  v.  Ross, 
Chestnnt  v.  Shane. 
Chestnut  v.  Shane's  Lessee, 
City  of  Portland  v.  City  of 

Bangor, 
Clark  V.  Thompson, 
Clarke  v.  Van  Surlay, 
Cochran  v.  Van  Surlay, 
Cockey  v.  Cole, 
Cofer  V.  Miller, 
Coffin  V.  Cottle, 
Cogan  V.  F'oley, 
Cohea  v.  State, 
Collins  V.  Montgomery. 
Comstock  V.  Crawford, 
Conover  v.  Musgrove. 
Cook  V.  Travis, 
Cook  V.  Toumbs, 
Cooley  V.  Wilson, 
Coon  V.  Fry, 
Cooper  V.  Reynolds, 
Cooper  V.  Sunderland, 
Coppinger  v.  Rice, 
Cornwall's  Estate, 


42 

47 
4 

60 
4 

47 

47 


54,  60 

16,  46 

22 

16,  17 

64,  66 

60 

44 

64 

20 

41 

47 

29,  17 

56 

47 

44 

2,10 

60 

58 

60 
17 
64,  66 
66,  70 
42 
21 

6 
46 
22 
31 
15 
42 
36 
47 
21,28 
12 

5 
22 

4 
11 


Corwin  v.  Merritt,  11,  K!,  ID 

Corbitt  V.  Clenny,  44 

Coy  V.  Downie,  16 

Crouch  V.  Eveleth,  29 

Crowell  V.  Meconkey,  48 

Crusoe  v.  Butler,  9 

Curley's  Succession,  27,28 

Currie  v.  Stewart,  22 

Curtis  V.  Norton,  41 

Cutts  V.  Haskins,  4 

D. 


Dakin  v.  Deniming, 
Dakin  v.  Hudson, 
Dale  V.  Medcalf, 
Davenport  v.  Young, 
Davis  V.  Brandon, 
Davis  V.  Ilelbig, 
Davis  V.  Menasha, 
Davis  V.  State  Bank, 
Davison  v.  Johonnot, 
DeBardelaben  v.  Stouden- 

mire, 
Deford  v.  Mercer, 


De  La  Montagnie  v 


Union 


Ins.  Co., 
Delaney's  Estate, 
Delaplaine  v.  Lawrence, 
Denny  v.  Mattoon, 
Dentzel  v.  Waldie, 
De  Riemer  v.  De  Cantillon, 
Dickerson  v.  Talbot,  ' 
Dickey  v.  Beatty, 
Doe  V.  Anderson, 
Doe  V.  Bowen, 
Doe  V.  Douglass, 
Doe  V.  Hardy, 
Doe  V.  Harvey, 
Doe  V.  McLoskey, 
Dolargue  v.  Cress, 
Dorsey  v.  Gilbert, 
Douglass  V.  Bennett, 
Douner  v.  Smith, 
Downing  v.  Rugar, 
Driggs  V.  Abbott, 
Drinkwater  v.  Drinkvvater, 
Dubois  V.  McLean, 
Du  Chastellux  v.  Fairchild, 


3 

16 

57 
67 
44 
64 
55 
58 
64,67 

10,  13 
48 

9 

9 
37 
55,56 
58 
53 
41 
53 
17 
8,16 
6p 
43 

8 
15 
48 
64 
51 

4 
10 

4 
36 
67 
55 


TABLE    OF    CASES. 


Dufour  V.  Camfranc, 

50 

Dulany  v.  Tilghman, 

58 

Dunbar  V.  Creditors, 

51 

Duncan  v.  Stewart, 

4 

Dunn  V.  Frazier, 

47 

Durham's  Estate. 

9 

Duval's  Heirs  v.  P.  &  M.  Bank,  15 

Dwight  V.  Blackmar, 

33 

E. 

Eads  V.  Stepliens. 

31 

Edmunds  v.  Crcusliaw, 

33 

Edwards  v.  Pope, 

69 

Ellet  V.  Paxson, 

32 

Emory  v.  Yroman, 

42 

Estep  V.  Hutchinson, 

64 

Ewing  V.  Higby, 

15,42 

F. 

Fambro  v  Gantt, 

32 

Farmers  Bank  v.  Merchant, 

43 

Farrar  v.  Dean. 

11 

Farrington  v.  King, 

20 

Fell  V.  Young, 

8 

Field's  Heirs  v.  Goldsby, 

15 

Field  V.  SchiefFelin, 

9 

Finch  V.  Edmonson, 

11 

Fisher  v.  Bassett, 

4 

Fiske  V.  Kellogg, 

16 

Fisk  V.  Norv'el, 

4,7 

Fitch  V.  Miller,                   12, 

13,14 

Fitch  V.  Witbeck, 

10 

Fleming  v.  Powell, 

43 

Fletcher  v.  Peck, 

60 

Flinn  v.  Chase, 

7 

Florentine  v.  Barton, 

69 

Forbes  v.  Halsey, 

11 

Ford  V.  Walsworth. 

11,12 

Formaii  v.  Hunt, 

1 

Foster  v.  Birch, 

22 

Foster  v.  Essex  Bank, 

GO 

Frazier  v.  Stceiirod. 

18 

Frederick  v.  Pac<juetto, 

10 

French  v.  Currier, 

9 

French  v.  Hoyt, 

16 

Froncbergcr  v.  I>ewis. 

33 

Fullerton  v.  McArtliur, 

69 

G. 

Gaines  v.  De  La  Croix, 

4,32 

Galpin  v.  Page, 

5 

Gannett  v.  Leonard, 

65, 

68 

Gay  V.  Minot, 

6 

Geddings  v.  Steele, 

20 

Gelstrop  v.  Moore, 

9 

George  v.  Watson, 

15 

Gernon  v.  Bestiek, 

28 

Gerrard  v  Johnson, 

8 

Gibbs  V.  Shaw, 

8, 

16 

Gibson  V.  Roll,               7,11, 

18, 

19 

Gilbert  v.  Cooley, 

50 

Gilbert  v.  Hoffman, 

52 

Giles  V.  Pratt, 

39 

Girard  L.  Ins.  Co.  v.  F.  &M 

. 

Bank, 

1 

Glass  V.  Greathouse, 

33 

Glenn  v.  Wootten, 

28 

Glover  v.  Ruffin, 

45 

Gerrard  v.  Thompson, 

16 

Goforth  V.  Longworth, 

9 

Going  V.  Emerj', 

9 

Good  V.  Norley, 

16, 

17 

Goodrich  v.  Pendleton, 

4 

Goodwin  v.  Jones, 

9 

Gordon  v.  Gordon, 

20 

Griffith  v.  Fowler, 

1 

Gowan  v.  Jones, 

41 

Graham  v.  Hawkins, 

20 

Grant  v.  Lloyd, 

51 

52 

Gray  v.  Hawes, 

2 

Grayson  v.  Weddle.           12, 

41, 

53 

Gregory  v.  McPherson,     10, 

11 

12 

Gregory  v.  Taber,              11, 

12 

13 

Gridley  v.  Phillips, 

44 

Griffin  v.  Cunningham, 

56 

Griffith  V.  Fni/.ier, 

4,7 

Grignon's  Lessee  v.  Astor, 

14 

15 

Grimes  v.  Doe, 

55 

Grimes  v.  Norris, 

4 

Griswold  v.  Bigelow, 

45 

Grogan  v.  San  PYancisco, 

60 

Guilcy  v.  Prathcr, 

9 

Gurney's  Succession, 

2C 

Guerrero  v.  Ballerino, 

33 

Guy  V.  Pierson, 

11 

Gwin  V.  M^'fairoll, 

8 

Gwinn  v.  Willinuis, 

39 

() 


TABLE    OF    CASES. 


II. 

HiiU'ombe  V.  Loudeniiilk.  -17 

llall  V.  ChnniiKin,  11 

Hall  V.  Tliayor,  fi 

IlalU'i'k  V.  Guy,  1.  12 

Ilalloi-k  V.  Moss,  IG,  18 

llainblin  v.  WanuH'ke.  33,  35 

llainilton  v.  Loekliait,  IG,  22 

Hand}'  v.  Noonan,  48 
Hanks  v.  Neal,                       5,  7,  28 

Harlan's  Estate,  4 

Hart  V.  Henderson,  56 

Harris  v.  Lester,  21 

HastiniTs  v.  Johnson,  34 

Hatelier  v.  Clifton,  20 

Havens  v.  Sherman.  17,  19 

Hawkins  v.  Hawkins,  42 

Hawkins  v.  Miller,  47 
Haynes  v.  Meeks,  4, 11, 12, 13, 14, 51 

Hays  V.  Jackson,  9 

Headen  v.  Oubre,  48 

Hedges  v.  Mace,  21 

Helms  V.  Love,  19 

Henderson  v  Herrod,  41 

Henderson  v.  Overton.  47 

Herdman  v.  Short,  18 

Herndon  v.  Rice,  47 

Heynian  v.  Babcock,  23 

Hicks  V.  Weens,  33 

High  V.  Xelms,  36 

Hightower  v.  Ilandlin,  34 
Hill  V.  Town  of  Sunderland,        55 

Hite  V.  Taylor,  9 

Hoard  v.  Hoard,  11 

Hobson  V.  Ewan,  41 
Holnian's  Heirs  v.  Bank  of 


Norfolk, 
Holyoke  v.  Ilaskins, 
Hopkins  v.  Mason, 
Howard  v.  Jloore, 
Howard  v.  North, 
Howe  v.  McGivern, 
Hotchkiss  V.  Cutting, 
IIoux  V.  County  of  Bates, 
Hudgens  v.  Jackson, 
Hudgin  V.  Iludgin, 
Hughes  V.  Watt, 
Hutchinson  v.  Cassidy, 


65.  66,  67 
4 
56 
44 
50 
35 
42 
53 
43 
47 
28 
32 


47, 


28, 
51, 


Ilutton  V.  Williams,  1 

I. 

Ikelheimer  v.  Chapman,  11 

Irwin  V.  Scribner,  4 

Ives  V.  Ashley,  33 

J. 

Jackson  v.  Bowen,  50 
Jackson  v.  Crawfords,  12,  11,  14 
Jackson  v.  Ilobinson,         ]0,  11,  20 

Jackson  v.  Snnimerville,  52 

Jackson  v.  Todd,  9 

Jackson  v.  Williams,  9 

Jacob's  Appeal,  42 

Jaggers  v.  Griflin,  46 

Jarboe  v.  Colvin,  21 

Jarvis  v.  Eussick,  29 

Jayne  v.  Boisgerard,  51 

Jelks  v.  Barrett,  53 

Jennings  v.  Kee,  48 

Jennings  v.  Moses.  4 

Jochunisen  v.  Suftblk  S.  B.,  4 

Johns  V.  Rome,  53 

Johnson  v.  Caldwell,  47 

Johnson  v.  Johnson.  18 

Johnson  v.  Fritz,  48 

Johnson  v.  Robertson,  47 

Jones  V.  Clark,  39 

Jones  V.  Ilenrj',  47 

Jones  V.  Perry,  63 

Jones  V.  Taylor,  45 

Journeay  v.  Gibson,  58 

Julian  V.  Beal,  47 

K. 

Kane  v.  Paul,  4 

Karnes  v.  Harper,  23 

Kearney  v.  Taylor,  58 

Kenipe  v.  Pintard,  48 

Kendall  v.  Miller,  9 

Kcnnard  v.  TiOuisiana,  60 

Keiniedy  v.  Gaines,  17 
Kibby  v.  Chitwood,                 65,  67 

Kidwell  V.  Brummagim,  9 

King  V.  Kent's  Heirs,  13 

Kingsbury  v.  Wild,  45 

Kingston  Bank  v.  Eltinge,  47 

Kittredge  v.  Folsom,  4 

Koehler  v.  Ball,  42 


TABLE    OF    CASES. 


Laffert}'  v.  Conn,  28 

Lamothe  v.  Lippott,  39 

Lane  v.  Dormau.  67 

Lane  v.  Xelson.  58,  56 

Larco  v.  Casaneuava,  9 

Latimer  v.  R.  E.  Co.,  4 

Laugliman  v.  Thompson,  46 

Laws  V.  Thompson,  47 

Lee  V.  Gardner,  48 

Leggett  V.  Hunter,  66,  70 

Leland  v.  Wilson,  43 

Le\\is  V.  Dntton,  4 

Lewis  V.  Webb,  55 

Lev}-  V.  Riley.  51 

Lieby  v.  Ludlow,  49 

Litchfield  v.  Cudworth,  33,  34 

Little  V.  Sinnett,  28 
Loan  Association  v.  Topeka,        54 

Lockhart  v.  John,  22 

Lockwood  V.  Sturtevant,  34,  45 

Long  V.  Burnett,  10 

Longworth  v.  Goforth,  48 

Louisville  v.  University,  60 

Low  V.  Purdy.  9 

Ludlow  V.  Park,  35 

M. 

Macy  V.  Raymond,  30,  44 

Mahan  v.  Reeve,  53 

Maple  v.  Kussart,  48 

Marr  v.  Bootliby,  30 

Martin  v.  Tarver  46 

Mason  v.  Ilam,  3C,  44 

Mason  v.  Osgood,  1,  41 

Matluir  V.  Chapman,  58 

Matheson  v.  Ilearin,  15 

Matter  of  Bidl,  CO 
Matter  of  Tiustees  of  X.  Y. 

P.  ?:.  Public  School,  06 

Maurr  v.  Parrish,  18,  13 

Mayor  v.  Horn.  .59 

McArtliur  v.  Canic,  32 

McBain  V.  Mcl'.ain,  41 

McBryde  v.  Wilkinson,  53 

McCaskey  v.  (Irafl',  52 

McCauley  v.  Harvey,  14 

McCown  V.  Foster,  39 


McDaniel  v.  Correll, 

56 

McGavock  v.  Bell, 

21 

McGhee  v.  Ellis, 

47 

McGill  V.  Doe, 

36 

McLaughlin  v.  Daniel, 

50 

McLaughlin  v.  Janney, 

30 

McLeod  v.  Johnson, 

48 

McManus  v.  Keith, 

46 

McNair  v.  Hunt, 

28 

McPhersou  v.  CundifF 

15 

Menges  v.  Dentler, 

58, 

59 

Menges  v.  Wertman, 

58, 

59 

Mei'ritt  v.  Home, 

48 

Merrit  v.  Terry, 

43 

Miles  V.  Wheeler, 

33 

Miller  v.  Jones, 

2, 

10 

Miller  v.  Miller, 

10 

Minnesota  Co.  v.  St.  Paul  Co., 

1 

Minor  v.  Selectmen, 

28 

Mitchell  V.  Freedley, 

48 

Mollitt  V.  Moffitt, 

13 

Mohr  V.  Manierre, 

12 

15 

Mohr  V.  Tulip,                    12, 

48 

51 

Monahan  v.  Vandyke, 

19 

Monell  V.  Dennison, 

4 

Moore  v.  Greene, 

41 

Moore  v.  Neil, 

39 

Moore  v.  Philbrick, 

4 

Moore  v.  Starks, 

8 

,17 

Moore  v.  Wingate. 

45 

Moreau  v.  Branham, 

53 

Morris  v.  Hogle,                   7, 

11 

,18 

Morrow  v.  Weed,               13, 

20 

,28 

Morton  v.  Welborn, 

47 

Moses  v.  ^VlcFarhine, 

47 

Mount  v.  Valle, 

12 

Mountoui-  v.  Purdy, 

28 

Muir  v.  Craig, 

47 

Mulford  v.  Beveridge, 

17 

Miilford  V.  Stalzenliack, 

20 

,39 

Miiiiu  V.  IJurges, 

33 

iMunson  v.  Newson, 

4 

Murray  v.  Jlobokeu  L.  &  1 

Co., 

00 

Muskingum  Bank  v.  Car- 

penter, 

39 

.Vlusselmau  v.  Ivshclmau, 

33 

Myer  v.  McDougal, 

20 

,.39 

8 


TAHI.K    OV    TASKS. 


N. 

Neal  V.  Patterson, 
Nelson  V.  Kountree, 
Newi'oml)  v.  Smith, 
Newman  v.  Sanmel, 
NichoU  V.  Nicholl, 
Nowier  v.  Coit, 
Norris  v.  Clymer, 
Norton  V.  rettibone, 
Nugent  V.  Giflbrd, 

O. 

Opinion  of  the  Judges, 
Osnian  v.  Traphagen,       37, 
Orton  V.  Noonan, 
Overfield  v.  Bullitt, 
Overton  v.  Johnson, 

P. 

Parker  v.  Nichols, 
Pattee  v.  ITionias, 
Patterson  v.  Carneal, 
Patterson  v.  Lemon, 
Paty  V.  Smith, 
Payne  v.  Payne, 
Pearce  v.  Patton, 
Pearson  v.  Jamison, 
Peebles  v.jWatfs'Adm'r, 
Penniman  v.  Cole, 
Pennington  v.  Clifton, 
People  V.  Piatt, 
Perkins  v.  Fairfield, 
Perkins  v.  Gridley, 
Perkins  v.  Winter, 
Perry  v.  Clarkson, 
Peters  v.  Caton, 
Piatt's  Heirs  v.  McCullough, 
Piper  V.  Elwood, 
Potter  V.  Smith, 
Powers  V.  Bergen, 
Preston  v.  Harrison, 
Price  V.  Boyd, 
Price  V.  Johnson, 
Price  V.  Winter, 
Pryor  v.  Downey,        10,  11, 
Puckett  V.  McDonald, 
Pursley  v.  Hays, 


32 

56,  60 

11 

58,59 

22 

4,  40 

M 

58 

0 


63 

42,44 

57 

9 

12 


22 
12 
34 
39 
66 

9 
58 
29 

9 
24 
47 
60 
22 
40 
15 
30 
30 
44 
47 
33 
70 
47 
47 

4 

17 

56,  60 

16 

48 


R. 

Kagland,  v.  Cireen,  51 

Jtandolph  v.  Hayue,  5 

Itaborg  V.  Hammond,  4 

Kawliiis  V.  Hailey,  41 

Rea  V.  McEachron,  41 

Rcqiia  V.  Holmes,  48 

Reynolds  v.  Schmidt,  12 

Reynolds  v.  Wilson,  28 

Rheel  v.  Hicks,  47 

Rice  V.  Parkman,  64 

Richards  v.  Rote,  56 

Richmond  v.  Marston,  47,  49 

Riddle  v.  Hill,  46 

Riddle  v.  Roll,  33 

Rigney  v.  Coles,  8 

Rikeman  v.  Kohn,  24 

Riley  v.  McCord,  4 

Roberts  v.  Casey,  41 

Robb  V.  Irwin,  15 

Robbins  v.  Bates,  39 

Robinson  v.  Martel,  9 

Rogers  v.  Abbott,  53 

Rogers  v.  Wilson,  16 

Rose  V.  Newman,  29 

Root  V.  McFerrin,  8 

Rozier  v.  Pagan,  67 

Rucker  v.  Dyer,  22 

Ruckle  V.  Barbour,  44 

Russell  V.  Rumsey,  58 

Ryden  v.  Jones,  33 

S. 

Sackett  v.  Twining,  1 

Salmond  v.  Price,  47,  49 

Sanford  v.  Granger,  11 

Sargent  v.  Sturm,  47 
Satcher  v.  Satcher's  Adm'r,         15 

Satterlee  v.  Mathewson,  60' 

Savage  v.  Benham,  20 
Schneider  v.  McFarland,        16,  17 

Schnell  v.  Chicago,  18 

Schindcl  v.  Keedy,  1 

Schwinger  v.  Hickok,  47 

Scott  V.  Dunn,  51,  47 

Sebastian  v.  Johnson,  29 

Selsby  v.  Redlan,  58 

Sexton  V.  Nevers,  47 


TABLE    OF    CASES. 


Shehan's  Heirs  v.  Barnett's, 

66 

67 

Sheldon  v.  Newton, 

15 

Sheldon  v.  Wright, 

13, 

45 

Sherman  v.  Buick, 

70 

Sherwood  v.  Fleming. 

59 

Shoenherger  v.  School  Directors 

,70 

Short  V.  Porter, 

51, 

46 

Shouk  V.  Brown, 

58 

Shriver  v.  Lynn, 

42 

Sibley  v.  WatHe, 

16 

Sigourney  v.  Sibley, 

6 

Sinclair  v.  Jackson, 

66 

Sittig  V.  Morgan, 

48 

Sitzman  v.  Pacquette, 

10 

Smith  V.  Arnold, 

1 

Smith  V.  Drake. 

33 

Smitha  v.  Flouruoy, 

11 

Smith  V.  Finch, 

45 

Smith  V.  Rice, 

2 

Smith  V.  "Warden, 

48 

Snevely  v.  Lowe. 

15 

Snowhill  V.  Snowhill, 

64 

Snyder  v.  Ives. 

53 

Sohier  v.  M.  G.  Hospital,  55 

,04 

69 

Southard  v.  Perry, 

48 

Spaulding  v.  Baldwin, 

8 

Speck  V.  Wohlicn, 

40 

Spragg  V.  Sliriver, 

48 

Spragins  v.  Taylor, 

20 

Sprigg's  Estate, 

20 

Stampley  v.  King, 

5 

17 

Staples  V.  Staples, 

39 

Stapp  V.  Toler, 

33 

State  V.  Dohcrty, 

56 

State  V.  Newark, 

60 

State  V.  Squires, 

56 

60 

State  V.  Stanley, 

48 

State  V.  Towl, 

41 

Steele's  Ex'r.  v.  Moxley, 

9 

Stevens  v.  Hauser. 

36 

Stewart  v.  Griflitii, 

64 

Steward  v.  Pettlgrew, 

28 

Stewart  v.  Stokes, 

53 

Stockton  V.  Downey, 

51 

Stow  V.  Kimball, 

11 

,20 

Stroble  v.  Sinitli, 

48 

Strouse  v.  Drennan, 

11 

,27 

Stuart  V.  Allen.             11,12 

,  i:i 

,11 

Sumner  v.  Parker,  2,  10 

Sutton  V.  Sutton,  4  . 

Suydam  v.  Williamson,  66 

Swan  V.  Wheeler,  29 

Sypert  v.  McCowen,  43 

T. 

Taylor  v.  Conner,  47 

Tayler  v.  Place,  55 

Taylor  v.  AValker,  8,  16 

Tenney  v.  Poor,  11 

Terwilliger  v.  Brown,  83 

Tevis  v.  Pitcher,  4 

The  Monte  Allegro,  47 

Thomas  v.  Le  Baron,  45,  28 

Thomas  v.  Pullis,  64,  68 

Thompson  v.  Morgan,  59 

Thorn  v.  Ingram,  42 

Thornton  v.  McGrath,  58,  60 

Thornton  v.  Mulquinne,  22 

Thurston  v.  Thurston,  64 

Tiernan  v.  Beam,  53 

Tippett  V.  Mize,  9,  30 

Tipton  v.  Powell,  41 

Todd  v.  Dowd,  46 

Tongue  v.  Morton,  15 

Tooley  v.  Gridley,  48 

Towle  v.  Forney,  66 

Townsend  v.  Gordon,  12 
Townsend  v.  Tallant, 

17,  18,  19,  42,  48 

Trent  v.  Trent,  11 

Turney  v.  Turney,  7,  11 

Tuttle  V.  Heavy,                 '  9 

Tyrrell  v.  Morris,  32 

U. 


55 

38 

2 

60 

2 


Underwood  v.  Tiillj% 
Undfi-wood  v.  McVeigh, 
United  States  v.  Arredondo, 
United  States  v.  Cruikshank, 
Unknown  Heirs  v.  Baker, 

V. 

Valle  v.  Fleming,     8, 16,  41,  48,  51 
Van  Alstyne  v.  Wimple,  43 

Vandever  v.  Baker,  1 

Varner  v.  Bevil,  4 


10 


TAHLE    OF    CASES. 


Verry  v.  l^IcClellrtu, 
A'ick  V.  M;iy(M-, 


11 
16 


Wade  V.  Carpenter,  41 

Walpole  V.  Elliott,  55 

Walker  v.  Morris,  20 

Ward  V,  Bremer,  53 

Ward  V.  Gates,  4 

Ware  \.  Johnson,  53 

Wales  V.  AVillai-d,  7 

Walker  v.  Sauvinet,  60 

Wallace  v.  Hall,  41 

WartieWs  Estate,  4 

Warner  v.  Helm,  47 

Washburn  v.  Carmichael,  IG 

Washington  v.  McCaughan, 

10,  22,  40 
Watkins  v.  Holman, 
Watson  V.  Mercer, 
Watson  V.  Reissig, 
Wattles  V.  Hyde, 
Watts  V.  Scott, 
Watts  V.  Waddle, 
Weed  V.  Donovan, 
Weed  V.  Edmonds, 
Weister  v.  Hade, 
Welch  V.  Lewis, 
Wellmau  v.  Lawrence, 
Wells  V.  Polk, 
White  Mt.  R.  E.  v  White  Mts 

R.  R. 
Whitman  v.  Taylor, 
Wier  V.  Davis, 
Wight  V.  Wallbaum, 
Wildes  V.  Vanvoorhis, 


65,  66,  67 

58,  60 

47 

11 

41 

4 

58 

11 

60 

21 

30,44 

20 


57 
21 
32 
4 
58 


Wiley  V.  White,  22 

Wilkinson  v.  Filhy,  22,  48 

Wilkinson  v.  Leland,  54 

Williams  v.  Childress,  1 1 

Williams  v.  Reed,  22 

AVillianison  v.  !?all,  60 

AVillianison  v.  iJerry,         21,  40,  66 
Williamson  v.  I.  P.  Congre- 
gation, 00 
Williamson  v.  Branch  Bank,  9 
William.-on  v.  Williamson, 

30,51,65,67 
Willard  v.  IVason,  30 

Willis  V.  Nicholson,  42 

Wills  V.  Cowper,  4 

Wilson  V.  Bigger,  48 

Winchester  v.  Winchester,  21 

AVing  V.  Dodge,  13 

Winslow  V.  Crowell,  51 

Winston  v.  McLendon,  10,  17 

Withers  v.  Patterson,  2,  4, 10, 11,  00 
Wood  V.  MeChesney,  11 

Woodruff  V.  Cook,  11 

Woods  V.  Monroe,  12,  19 

Worten  v.  Howard,  32 

Wortman  v.  Skinner,  53 

Wright  V.  Hawkins,  59 

Wright  V.  Ware,  11,13 

Wyatts'  Adm'r  v.  Rambo,  11 

Wynns  v.  Alexander,  32 


Yarboro  v.  Brewster,  35 

Yeomans  v.  Brown,  19,  20 

Young  V.  Dowling,  53 


CONTENTS. 


C  n  A  P  T  E  R     I . 

Plan  and  scope  of  the  work.     Definitions. 

CHAPTER    II. 

Sales  void  because  the  court  had  no  authority  to  enter  the  judgment  or 
order  of  sale.  Jurisdiction,  kinds,  sources,  methods  of  acquiring,  loss 
of,  effect  of.  absence  of.  General  principles  governing  jurisdictional 
inquiries.  Orders  of  sale  in  probate,  and  how  authority  to  make 
must  be  obtained.  Sales  without  license  from  court.  Petitions  for 
orders  of  sale,  by  wlioni  to  be  presented,  what  must  contain,  how 
construed,  notice  of  liearing  of.  The  eflects  of  defects  in  petitions 
and  citations  and  the  service  thereof. 

CHAPTER    III. 

Sales  void  for  errors  or  omissions  subsequent  to  the  judgment  or  order 
of  sale.  General  rule  regarding  irreguhiritius.  Failure  to  take  oath 
or  give  bond.  Execution,  necessity  for,  when  to  issue,  form  of.  Sales 
void  for  want  of  levy,  appraisement,  incpiisition  or  notice,  or  because 
made  at  improper  time  or  phice,  or  by  or  to  an  improper  person,  or  in 
an  improper  manner,  or  embracing  property  not  liable  to  sale. 
Frauds,  and  their  effect. 

CHAPTER    IV. 

The  confirmation  and  deed,  necessity  for,  defects  in,  irregularities  waived 
by.  Deeds,  when,  by  whom,  and  to  whom  to  be  made,  and  conse- 
quences of  defects  in  foru). 

CHAPTER    V. 

Legal  and  equitable  rights  of  imrthasers  at  void  sales.  Resisting  pay- 
ment of  bid.  Recovering  money  paid.  Urging  acts  of  ratification 
as  estoppel.  Jiiglits  of  subrogation.  Aid  of  equity  in  supplying 
omissions,  correcting  mistakes,  compelling  and  reforming  convey- 
ances. 

CHAPTER    VI. 

The  constitutionality  of  curative  statutes.  Provisions  of  Constitution 
of  United  States  allecting.  Confirming  judicial  proceedings.  Mak- 
ing informalities  immaterial.     General  reflections  concerning. 

CHAPTER     VII. 
Constitutionality  of  special  statutes  authorizing  involuntary  sales.    Gen- 
eral  nature   of.      Power  of    legislature   to    provide  for  involuntary 
transfers.     Legislative  sales,  bv  wlioiii  mav  be  made  ami  uiidci-  what 
circumstances. 


CHAPTER  I. 


I  \  '1'  1?  0  D  U  0  TOR  Y. 

Section'  1.  Plan  and  Scope  of  the  Work — Sundry 
Definitions. — We  purpose,  in  the  following  pages,  to  direct 
our  attention  and  that  of  our  readers  to  void  execution  and 
judicial  sales,  and  the  legal  and  equitable  rights  of  purchas- 
ers thereat.  Having  considered  these  questions,  we  shall 
conclude  with  inquiries  concerning  the  constitutionality  of 
those  curative  acts  and  that  class  of  special  legislation,  which 
attempt  either  to  validate  invalid  judicial  sales,  or  to  author- 
ize involuntary  sales,  in  the  absence  of  any  judicial  pro- 
ceediuirs  whatever.  In  the  terms  "judicial  and  execution 
sales,"  as  we  here  use  them,  are  embraced  all  sales  made  in 
pursuance  of  the  orders,  judgments  or  decrees  of  courts,  or 
to  obtain  satisfaction  of  such  orders,  judgments  or  decrees. 
Precisely  what  sales  can  accurately  be  denominated  "judi- 
cial," is  not  very  well  settled.  Of  course,  they  must  be 
tlie  result  of  judicial  proceedings,  and  the  order,  decree  or 
judgment  on  which  they  are  l)ased  must  direct  the  sale  of 
the  property  sold.  There  can  be  no  judicial  sale  except  on 
a  pre-existing  order  of  sale.'  And  probably  the  order  of  sale 
is  not,  '.done,  suflicicnt  (o  entitle  the  sale  to  be  called 
judicial.  In  a  state  where  an  administrator's  sale,  though 
made  bv  virtue  of  an  order  of  court,  was  not  recpiired  to 
be    reported    to    the    court    nor   to    be    conlirmed.  Judge 

1  Minnesota  Co.  v.  St.  I'.-uil  Co.,  2  Wall.  tilD. 


14  AOll)    JUDICIAL    SALES. 

Stow  lu'Ul  it  not  lo  l>c>  :i  jiulicial  sale.'     11",  however,  n  sale 
is    ordoivd     by    tlie    court,     is    coiuliK'tcd    by     an     officer 
appointed  by,  or  subject  to  the  control  of  the  court,   and 
reipiires  the  approval  of  the  court  Ix-forc  it  can  be  treated 
as  tinal,  then  it  is  clearly  a  judicial  sale.     Such  a  sale  is 
unquestionably  a  sale  by  the  court.^     Sales  made  in  pro- 
ceedings   for   partition    are   undoubtedly  judicial  ;•*    so   are 
sales  made  by  administrators  and  guardians  under  the  prac- 
tice pursued  in  most  of  the  states. °     Execution  sales  are  not 
judicial.^     They  must,  it  is  true,  be  supported  by  a  judg- 
ment, decree  or  orcU'r.     But  the  judgment  is  not  for  the  sale 
of  any  specific  property.     It  is  only  for  the  recovery  of  a 
designated  sum  of  money.     The  court  gives  no  directions 
and  can  give  none  concerning  what  property  shall  be  levied 
upon.     It  usually  has  no  control  over  the  sale,  beyond  set- 
ting it  aside  for  non-compliance  with  the  directions  of  tlie 
statutes  of  the  state.     The  chief  differences  between  exe- 
cution and  judicial  sales,  are  these  :  the  former  are  based  on 
a  general  judgment  for  so  much  money,  the  latter  on  an 
order  to  sell  specific  property  ;  the  former  are  conducted  by 
an  officer  of  the  law  in  pursuance  of  the   directions  of  a 
statute,  the  latter  are  made  by  the  agent  of  a  court  in  pur- 
suance of  the  directions  of  the  court ;  in  the   former  the 
sheriff  is  the  vendor,  in  the  latter,  the  court ;  in  the  former 
the  sale  is  usually  complete  Avhen  the  property  is  struck  off 
to  the  highest  bidder,  in  the  latter  it  must  be  reported  to 

2  Smith  V.  Ai-nold,  5  Mason,  420. 

3  Forman  v.  Hunt,  3  Dana,  G21. 

4  Freeman  on  Co-Tenancy  and  Partition,  sec.  548;  Sackett  v.  Twining, 
18  Pa.  S.  199;  Ilutton  v.  Williams,  35  Ala.  503;  Girard  L.  Ins.  Co.  v.  F. 
&  M.  Bank,  57  Pa.  S.  388. 

sVandever  v.  Baker,  13  Pa.,  Sec.  121;  Halleck  v.  Guy,  9  Cal.  195; 
Hutton  V.  Williams,  35  Ala.  517;  Mason  v.  Osgood,  64  N.  C.  467. 
6  Grimthv.  Fowler,  18  Vt.  394. 


VOID    JUDICIAL    SALES.  15 

and  approved  by  the  court.^     But  our  present  purpose  does 
not  require  us  to  announce  any  tests  by  which  to  determine 
what  sales  are  judicial,  nor  to  separate  the  different  classes 
of  judicial  sales  from  one  another.      We  shall  assume  that 
judicial  sales  embrace,    1st,  those  made  in  chancery ;  2d, 
those  made   by  executors,    administrators  and  guardians, 
when  acting  by  virtue  of  authority  derived  from  orders  of 
sale  obtained  injudicial  proceedings  ;  and,  3d,  all  other  cases 
where  property  is  sold  under  an  order  or  decree  of  court  de- 
signating such  property  and  authorizing  its  sale.    Void  sales, 
whether  execution    or   judicial,    may,    for   convenience    of 
treatment,  be  divided  into  two  great  classes  :    1st,   those 
which  are  void  because  the  court  had  no  authority  to  enter 
the  judgment  or  order  of  sale  ;    2d,  those  which,  though 
based  on  a  valid -judgment  or  order  of  sale,  are  invalid  from 
some  vice  in  the  subsequent  proceedings.     The  word  void, 
though  apparently  free  from  ambiguity,  is  employed  in  va- 
rious   senses.      Accurately  speaking,   a  thing  is  not  void 
unless  it  has  no  force  or  effect  whatever.      "  A  conveyance 
can  not  be  said  to  be  utterly  void,  unless  it  is  of  no  effect 
whatsoever  and  is  incapable  of  confirmation  or  ratification."® 
"  Another  test  of  a  void  act  or  deed  is,  that  every  stranger 
may  take  advantage  of  it,  but  not  of  a  voidal)le  one.    Again, 
a  thing  may  be  void  in  several  degrees:   1,  void,   so  as  if 
never  done,  to  all  purposes,  so  that  all  persons  may  take  ad- 
vantage thereof;  2,  void  to  some  purposes  only  ;  3,  so  a  oid 
by  oi)eratiou  of  law  that  he  that  Avill  have  the  benefit  of  it 
may  make  it  good.""     In  the  terms   "  void  sales,"   as  em- 
ployed in   this  work,  we  include  all  those  sales  which,  as 

7  Aiiiln-ws  V.  Scotton.  2  IJlfind,  (J3G;  Soliindcl  v.  Keedy,  43  Md.  417. 

>*  Boyd  V.  lihuikiimn,  2!)  Cal.  :i5. 

9  Anderson  v.  Roberts,  18  Johns.  527. 


16  V01I>    JUDICIAL    SALES. 

against  the  original  pnrohascr,  may,  without  any  proceed- 
ings to  set  them  aside,  be  treated  as  not  transferring  the 
title  of  the  property  assumed  to  be  sold.  These  sales,  it 
will  be  shown,  may  be  ratified  or  confirmed.  Many  of  them 
give  rise  to  important  equitable  rights  in  favor  of  the  origi- 
nal purchaser  or  his  grantees.  Some  of  them,  while  con- 
ferring neither  legal  nor  equitable  rights  on  the  original 
purchaser,  become,  in  the  hands  of  his  innocent  vendees  for 
value,  in  good  ftiith  and  without  notice,  valid  both  at  law 
and  in  equity. 


CHAPTER  II. 


SALES  VOID  BECAUSE  THE  COURT  HAD  NO  AUTHORITY  TO 
ENTER  THE  JUDGMENT,  OR  ORDER  OF  SALE. 

Section  2.   Jurisdiction  and  the  effect  of  a  want  of. 

Sec.     3.   Kinds  and  sources  of  Jurisdiction. 

Sec.    4.   Instances  of  want  of  Jurisdiction  of  Probate  Courts  over  the 

subject-matter. 
Sec.     5.   Means  of  acquiring  .Jurisdiction. 
Sec.     6.   Cases  in  which  the  Judge  is  disqualified  from  acting. 
Sec.     7.   Suspension  or  loss  of  Jurisdiction. 
Sec.     8.   General  principles  governing  questions  of  Jurisdiction. 

ORDERS   OF   SALE   IN   PROBATE,    AND  HOW  AUTHORITY   TO   MAKE   MUST 

BE   OBTAINED. 

Sec.     9.   When  Sales  may  be  made  \vithout  any  license  of  Court. 
Sec.  10.   Petition  for  License  must  be  by  person  competent  to  present  it. 
Sec.  11.   Sufficient  Petition  is  indispensable;   what  Petitions  are  suf- 
ficient. 
Sec.  12.   Statutes  designating  what  Petition  must  contain. 
Sec.  13.   Petitions  for  sales  liberally  construed; — referring    to    other 

papers. 
Sec.  14.    Not  fatal  that  Petition  is  not,  in  fact,  true. 
Sec.  15.   Notice  of  application  to  sell,  cases  holding  it  unnecessary. 
Sec.  16.   Notice  of  application  to  sell,  cases  holding  it  necessary. 
Sec.  17.   Notice  of  apj)lication;  service  on  minor  not  to  be  waived  nor 

dispensed  with. 
Sec.  18.   Notice  of  application  must  be  given  in  the  manner  prescribed 

l)y  law. 
Sec.  19.   Notice  of  application  must  be  given  for  the  time  prescribed  by 

law. 
Sec.  20.   The  License,  or  Order  to  Sell,  and  its  effect  as  an  adjudication. 

Section  2.  Tlie  Effect  of  Want  of  Jurisdiction . — A  void 
judgment,  order  or  dt^crce,  in  wluitcver  tribuiiul  it  may  be 
entered,  is,  in  log:d  eflcct — nothing.  "  All  acts  performed 
under  it,  and  all  claims  flowing  out  of  it,  ;ire  void."^" 
Hence,  a  sale,  based  on  such  a  judgmcnl,  has  no  foundation 

i**  Freeman  on  .Judg'ts,  sec.  117. 


18  VOIP    .TUniCIAL    SALES. 

in  law.  It  must  certainly  fall."  Judicial  proceedings  are 
void  when  the  court,  wherein  they  take  place,  is  acting  with- 
out jurisdiction.  "The  power  to  hear  and  determine  a 
cause  is  jurisdiction  ;  it  is  coram  judice  whenever  a  cause  is 
presented  which  brings  this  power  into  action  ;  if  the  i)eti- 
tioner  states  such  a  case  in  his  petition,  that  on  a  demurrer 
the  court  would  render  judgment  in  his  favor,  it  is  an  un- 
doubted case  of  jurisdiction."^^  "  It  is  in  truth  the  power 
to  do  both  or  either — to  hear  without  determining,  or  to 
determine  Avithout  hearing. "^^  It  must  be  constantly  re- 
membered that  jurisdiction  is  indispcnsa])le  to  the  validity 
of  all  judicial  proceedings  ;  that  if  the  proceedings  taken 
to  obtain  jurisdiction  are  radically  defective,  all  subsequent 
steps  are  unavailing,  however  regular  they  may  be.  Thus, 
though  the  proceedings  in  a  probate  court  to  obtain  an  order 
of  sale,  and  also  the  proceedings  subsequent  to  the  order, 
be  all  perfectly  regular,  yet  the  sale  is  utterly  void  if  it  can 
be  shown  that  there  was  no  valid  grant  of  administration 
because  the  court  had  no  jurisdiction  to  grant  it.^* 

Sec.  3.  Kinds  and  Sources  of  Jurisdiction. —  "Juris- 
diction is  conferred  upon  courts  by  the  constitution  and 
laws  of  the  country  in  which  they  are  situate,  authorizing 
them  to  hear  and  determine  causes  between  parties,  and  to 
carry  their  judgments  into  effect. "^^  The  power  to  hear  a 
particular  class  of  cases,  or  to  determine  controversies  of 
a  specified  character,  is  called  jurisdiction  over  the  subject- 
matter.  This  jurisdiction  is  conferred  by  the  "authority 
which  organizes  the  court,  and  is  to  be  sought  for  in  the 
o-eneral  nature  of  its  powers,  or  in  authority  specially  con- 
ferred by  statute.     If  the  order  or  judgment,  on  which  a 

11  Freeman  on  Executions,  sec.  16,  note  20;  Gray  v.  Ilawes,  8  Cal.  5G2. 

12  United  States  v.  Arredondo,  6  Pet.  709. 

13  Exparte  Bennett,  44  Cal.  88. 

1*  Sumner  v.  Parker.  7  Mass.  79;  Unknown  Heirs  v.  Baker,  23  111.  490; 
Smith  V.  Rice,  11  Mass.  507 ;  Chase  v.  Ross,  36  Wis.  267 ;  Withers  v.  Pat- 
terson, 27  Texas,  501;  Exparte  Barker,  2  Leigh,  719;  Miller  v.  Jones, 
26  Ala.  247.     (See  sec.  10.) 

15  Freeman  on  Judg'ts,  sec.  119. 


VOID    JUDICIAL    8ALE8.  19 

sale  was  made,  was  one  resulting  from  a  controversy  Avhich 
the  court  had,  in  no  circumstances,  any  power  to  determine, 
there  was  an  absence  of  jurisdiction  over  the  subject-matter, 
and  the  sale  is  incurably  void."^*^  In  addition  to  jurisdic- 
tion over  the  subject-matter,  it  is  also  indispensable  that  the 
court  should  have  jurisdiction  over  the  person  or  thing 
against  which  its  judgment  operates.  Jurisdiction  over  a 
subject-matter  must  be  conferred  by  law  :"  jurisdiction  over 
a  person  may  be  conferred  by  his  consent.  If  jurisdiction 
over  a  person  is  not  conferred  by  his  consent,  or  obtained 
in  the  manner  designated  by  law,  the  judgment  against  him 
is  void,  and  can  support  no  sale  of  his  property. 

Sec.  4.  Instances  of  want  of  jurisdiction  over  the  sub- 
ject-matter are  found  more  ive(\\\Gi\t\y  m  probate  proceedings 
than  elsewhere.  If  the  statute  of  a  state  governing  the 
settlement  and  distriVjution  of  the  estates  of  deceased  per- 
sons makes  no  provision  concerning  the  estates  of  persons 
who  died  prior  to  the  passage  of  such  statute,  then  an 
attempt  to  administer  on  one  of  the  last  named  estates 
would  be  usurping  authority  over  a  subject-matter  not 
within  the  jurisdiction  of  the  court,  and  the  proceediugs 
would  therefore  be  invalid. ^^  So,  if  a  probate  court  should 
make  an  order  for  the  sale  of  property  situate  in  another 
state  than  the  one  in  which  the  order  is  made,  this  would 
also  be  an  assumption  of  authority  over  a  su})ject-matter  not 
within  the  jurisdiction  of  the  court,  and  would  l)e  void.^^ 
This  rule  has  been  held  to  be  api)licable  even  where  per- 
sonal property,  tliough  in  another  state  at  the  death  of  its 
owner,  was  subsccjueutly  brought  within  the  state  where  the 
order   was   made.-"     Courts  of  ])robat('   have  no  power  to 

16  Fn-cinan  on  Jiid^"ts.  sec.  120. 

1'  iJakin  v.  Denmiiiif;,  G  I'ai.  0.'). 

18  Downer  v.  Smith,  24  C;il.  lU:  ( 'oppingor  v.  Kice,  :W  Cul.  408; 
Grimes  v.  Norris,  6  Ciil.G21  ;  A(];nu>  v.  NOnis.j:!  Uuw.  V.  S.  353;  Tevis 
V.  ritch.T,  10  Ciil.  40."). 

i9>;owler  V.  Coit,  1  Oli.  r)i;i;  Watts  v.  \Vad(lI«',  (J  I'd.  :{S!I;  Wills  v. 
Cowper,  2  Oh.  124;  T.atimer  v.  I{.  K.  Co..  \.\  Mo.  105;  Price  v.-Iohnsoi  . 
1  Oh.  St.  300. 

20  Vainer  v.  Bevil.  17  Ala.  28«. 


20  VOID    JUDICIAL    SALES. 

irnint  letters  of  iidminist ration,  nor  letters  testamentary,  on 
the  estate  of  a  living  person.  Letters  may  be  granted 
under  a  mistake  of  faet,  upon  the  su})position  that  the  tes- 
tator, or  other  person,  is  dead.  The  case  is  nevertheless 
one  in  which  the  court  has  no  jurisdiction.  If  he  who  was 
supposed  to  have  died  is,  in  fact,  living,  all  probate  sales 
nnd  other  proceedings  are  void,  and  can  have  no  effect  on 
his  title. -^  Grants  of  letters  of  administration  were  for- 
merly judged  to  be  void  unless  the  deceased  did  in  fact  die 
intestate.^  Surrogate  and  probate  courts  are  usually  lim- 
ited in  their  jurisdiction  to  a  specified  class  of  cases.  Thus, 
it  is  generally  required  that  a  man's  estate  be  settled  in  the 
<'Ounty  where  he  resided  at  the  time  of  his  death.  If  it 
iippears  that  letters  testamentary  or  of  administration  were 
granted  in  a  county  in  which  the  deceased  did  not  reside, 
the  whole  proceedings  must  be  regarded  as  void.'^  How, 
tind  in  what  circumstances  this  fact  may  be  made  to  appear, 
nre  questions  to  which  diverse  answers  may  be  found  in  the 

21  Duncan  v.  Stewart,  25  Ala.  408 ;  Griffith  v.  Frazier,  8  Cranch,  9 ;  Fisk 
V.  Xorvel,  9  Tex.  13;  Jochumsen  v.  Suftblk  Sav.  Bank,  3  Allen.  87;  With- 
ers V.  Patterson,  27  Tex.  496;  Beckett  v.  Selover,  7  Cal.  237. 

22Holyoke  v.  Haskins.  5  Pick.  24;  Brock  v.  Frank,  51  Ala.  91 ;  Kane  v. 
Paul,  14  Pot.  39;  Gritiith  v.  Frazier,  8  Cranch,  24.  This  rule  is  believed 
to  be  obsolete  in  the  United  States.  In  its  stead  we  have  adopted  the 
rule  that  a  j^rant  of  administration,  made  by  a  court  having  jurisdiction 
-of  the  subject-matter  and  of  the  particular  case,  while  it  remains  unre- 
voked, can  not  be  regarded  as  void.  "Xor  can  the  recall  or  repeal  of  the 
appointment  be  fairly  regarded  as  placing  the  appointees  of  the  court  in 
the  same  position  as  if  the  decree  never  existed.  On  the  contrary,  all 
»cts  done  in  the  due  course  of  administration,  while  such  decrees  re- 
mained in  force,  nnist  be  held  entirely  valid."  Redfield  on  Wills,  Part 
2,  p.  109;  Bigelow  v.  Bigelow,  4  Oh.  138;  Kittredge  v.  Folsom,  8  N.  H. 
98;  Ward  v.  Oakcs,  42  Ala.  225;  .Jennings  v.  Moses,  38  Ala.  402;  Brough- 
ton  V.  Bradley,  34  Ala.  694;  Brock  v.  Frank,  51  Ala.  91.  But  one  who 
deals  with  an  executor  is  not  protected  if  he  has  notice  of  the  existence 
of  a  later  will  tlian  tlie  one  admitted  to  i)robate.  Gaines  v.  De  La  Croix, 
a  Wall.  720. 

'■» Beckett  v.  Selover,  7  Cal.  215;  Haynes  v.  Meeks,  10  Cal.  IK);  Har- 
lan's Estate,  24  Cal.  182;  Moore  v.  Philbrick,  32  Me.  102;  Munson  v. 
Newson,  9  Tex.  109;  Cutts  v.  Haskins,  9  Mass.  543;  Holyoke  v.  Haskins, 
5  Pick.  20,  and  9  Pick.  259;  Goodrich  v.  Pendleton,  4  .Johns.  Ch.  .549. 


VOID    JUDICIAL    SALES.  21 

authorities.  Undoubtedly  the  records  of  the  court  may  be 
inspected.  If  they  show  the  non-residence  of  the  deceased, 
they  are  competent  evidence  of  their  own  invalidity.  If 
they  fail  to  assert  anything  about  the  residence,  either  in  the 
averments  of  the  petition  or  in  the  findings  of  the  court,  we 
should  judge  this  to  be  fatal.  In  every  case  it  ought  to 
appear,  prima  facie,  that  the  court  has  jurisdiction  over 
the  estate.  Usually  a  petition  is  presented  to  the  court  or 
judge,  in  which  the  fjicts  authorizing  the  assumption  of  juris- 
diction in  the  particular  case  are  stated.  The  duty  of  the 
court  or  judge  is  to  investigate  and  determine  the  truth  of 
these  jurisdictional  allegations.  Its  subsequent  grant  of 
letters  implies  that  these  allegations  have  been  found  to  be 
true.  "  Whenever  the  jurisdiction  of  a  court  not  of  record 
depends  on  a  fact  which  it  is  required  to  ascertain  and  settle 
by  its  decision,  such  decision,  if  the  court  has  jurisdiction 
of  the  parties,  is  conclusive,  and  not  subject  to  any  col- 
lateral attack."^*  Hence,  in  a  case  where  a  prol)ate  court 
has,  upon  a  petition  asserting  the  essential  jurisdictional 
facts,  and  after  notice  to  the  parties  in  interest,  given,  in  the 
manner  prescribed  by  law,  granted  letters  testamentary  or 
of  administration,  the  proceedings  can  not  be  avoided  col- 
laterally, in  the  majority  of  the  states,  by  proof  that  the 
deceased  did  not  die  within  the  jurisdiction  of  the  court. ^^ 
Any  other  rule  would  lead  to  the  most  embarrassing 
results.  The  residence  of  a  deceased  person  can  be  deter- 
mined only  by  hearing  parol  evidence.  Difterent  judges 
may  reach  opposite  conclusions  from  the  same  evidence. 
The  parties  in  interest  may  at  separate  times  produce  ditl'er- 
ent  evidence  on  the  same  issue.     If,  after  a  court  had  hoard 

'^■♦Freeman  on  .Tudg'ts,  sec.  523. 

2.'' Irwin  V.  Scribner,  18  Cal.  409;  Lewis  v.  Button,  S  TIow.  Pr.  103; 
Andrews  v.  Avery,  14  Gnitt.  2:u;;  Wanield's  Estate,  22  (.'al.  nl ;  Sutton 
V.  Sutton,  13  Vt.  71;  Fisher  v.  liassett,  !»  I-eigli,  110;  Barrett  v.  Garney, 
33  Cal.  530 ;  Driggs  v.  Abbott,  27  Vt.  581 ;  Burdett  v.  Silsbee,  15  Tex.  015 ; 
Mouf^ll  V.  DfMini.son,  17  How.  Pr.  422;  Ablwtt  v.  Coburn,  28  Vt.  003; 
Itarborg  V.  Hammond,  2  II.  &  (J.  42.  See  also  Jiiley  v.  McCord,  24  Mo. 
20.");  Wight  v.  Wallbaum.  30  111.  'i'A. 


-2-2  VOID    JUDICIAL    SALES. 

nml  decided  the  issue  concin-niug  the  residence  of  the 
deceased,  the  question  renuiincd  unsettled  to  such  an 
oxtont  that  it  could  be  re-litigated  for  the  purpose  of  avoid- 
lUiX  all  the  proceedings  of  the  court,  no  person  would  have 
the  temerity  to  deal  with  executors  or  administrators. 

Sec.  5.  MetJiods  of  Acquiring  Jurisdictioii. — Jurisdiction 
over  a  complainant  is  obtained  by  his  coming  before  the 
court  and  making  his  complaint  in  a  manner  recognized  by 
law.  This  is  usually  by  a  statement  in  writing,  filed  in  the 
court  or  with  the  clerk  thereof.  Jurisdiction  over  the  de- 
fendant is  obtained  ))y  his  voluntary  appearance  in  the 
action,  or  by  the  service  of  ])rocess  upon  him.  Jurisdic- 
tion over  a  thing  proceeded  against  in  rem  is  acquired  by 
its  seizure  under  the  process  of  the  court.^  If  a  defend- 
ant neither  appears,  nor  is  served  with  process,  a  judgment 
against  him  is  void.  If,  however,  he  is  served  with  process 
which  is  irregular  in  form,  or  the  mode  of  service  is  irregu- 
lar, he  must  generally  object  to  such  irregularity ;  if  he 
fails  to  do  so,  and  judgment  is  entered  against  him,  it  will 
generally  not  be  treated  as  void,  when  collaterally  as- 
sailed.^ When  letters  testamentary  or  of  a(bninistration 
on  the  estate  of  a  deceased  person,  or  of  guardianship 
upon  the  person  or  estate  of  a  lunatic  or  minor,  are  applied 
for,  such  measures  as  the  statutes  require  must  be  taken 
for  the  purpose  of  obtaining  jurisdiction  over  the  persons 
interested.  The  statute  ma}'  authorize  the  court  to  pro- 
ceed without  notice  to  anyone.  The  proceeding  may  be 
171  rem.  But  if  notice  is  exacted  by  the  statute,  either  by 
pul)lication,  or  by  the  personal  service  of  a  citation,  a  sub- 
stantial compliance  with  the  statute  is  a  prerequisite  to 
obtaining  authority  to  proceed.'^ 

Sec.  6.  Wltere  the  Judge  is  Disqualified  from  Acting. — 
Sometimes   a  court  has  jurisdiction,  l)oth   over  the  person 

26  Cooper  v.Kej'nolds,  10  Wall.  308;  Galpin  v.  ]»age,  1  Cent.  L.  J.  491; 
1  Saw.  309;  18  Wall.  350;  Freeman  on  Judg'ts,  sees.  606  and  611. 

27  Freeman  on   Jndg'ts     sec.  12G;    Hanks    v.    Neal,  44    Miss.    224; 
Stampley  v.  King,  51  Miss.  728. 

■-•«  Randolph  v.  Bayue.  44  Cal.  370;  Beckett  v.  Selover,  7  Cal.  215. 


VOID    JUDICIAL    SALES.  23 

and  the  subject-matter,  but  can  not  proceed  because  the 
judge  thereof  is  disqualitied  from  acting  in  the  particular 
case.  If,  however,  he  proceeds,  when  incompetent  by 
statute,  his  judgment  or  order  is,  in  most  states,  invalid. 
For  the  purpose  of  trying  or  determining  the  particular 
matter,  he  is  not  a  judge. ^ 

Sec.  7.  Suspension  or  Loss  of  Jurisdiction. — A  court  or 
judge  having  authority  to  proceed  at  one  time  may  be  di- 
vested of  its  jurisdiction,  either  temporarily  or  perma- 
nently. The  court  may  be  al)olished,  or  its  jurisdiction 
may  be  divested  by  statute.  The  proceedings  may  be  re- 
moved into  some  appellate  tribunal.  The  term  of  the  court 
may  be  adjourned  .szwe  die;  in  which  case  no  judgment  can 
be  entered  before  the  re-opening  of  the  court  at  its  next 
term,  unless  expressly  authorized  by  statute.  In  all  cases 
where  a  court  is  rendered  incompetent  to  proceed,  its  pro- 
ceedings during  such  incompetency  are  as  invalid  as  though 
it  had  never  possessed  jurisdiction.^''  If  a  probate  court 
appoints  an  executor  or  administrator,  it  can  not,  while  he 
continues  in  office,  appoint  another.  Its  jurisdiction  is 
exhausted.  Its  fuilher  grant  of  letters  is  void.^^  Neither 
can  it  appoint  another  administrator  after  an  estate  has 
been  fully  administered  upon,  and  distributed  to  the  heirs. ^'^ 
Where  a  statute  forl)ade  the  administration  upon  the  estates 
of  persons  who  had  been  dead  for  more  than  twenty  years, 
a  irrant  of  administration  in  defiance  of  the  statute  was 
adjudged  void.**  If  notice  is  given  that  a  petition  for  the 
sale  of  hinds  will  be  presented  at  a  time  specified,  and  it 
is  not  then  presented,  the  person  interested  in  opposing  it 
mav  regard  it  as  abandoned.    The  court  has  no  authority  to 

2»  Freeman  on  Judg'ts,  sec.  145;  Sif^ourney  v.  Sibley,  21  Pick.  101; 
C'onin  V.  Cottle.  !»  Tick.  -JST;  Hull  v.  'Huiyer,  105  Mass.  219;  Gay  v. 
Minot,  :{  Cu.sh.  ;J52. 

3^  Freeman  on  .ludg'ts,  sec.  121. 

31  Grifflth  V.  Frazier,  8  Crandi,  li;  Flinn  v.  Chase,  4  Den.  90. 

=«Fisk  V.  XorveK  0  Tex.  i:{. 

■■«  Wales  V.  Willard.  2  Mass.  120. 


24  VOID    JUDICIAL    SALES. 

hear  it  without  giving  a  new  notice.^^  But  if  the  failure  to 
present  the  a})i)lirati()n  arises  from  the  fact  that  the  term  of 
court  is  not  opened,  no  i)resuinplion  of  abandonment  can 
be  indidi!;ed.  The  })etition  may,  it  has  been  hehl,  be  pre- 
sented at  the  next  term  without  any  new  notice.*^ 

Sec.  8.  General  PrbiclpJes  Governing  Jurisdictional  In- 
quiries.— In  attempting  to  decide  whether  a  judicial,  execu- 
tion, or  probate  sale  can  be  avoided  on  the  ground  that 
the  court  entering  the  judgment  or  order  of  sale  did  not 
have  jurisdiction  over  the  person  of  the  defendant,  the 
tirst  inquiry  will  be  to  ascertain  whether  the  court  was  a 
court  of  general  jurisdiction,  or  a  court  of  special  or  lim- 
ited jurisdiction,  or,  in  other  words,  whether  it  is  a  court 
of  record,  or  one  not  of  record.  This  inquiry  must  be  con- 
ducted chiefly  in  the  statutes  of  the  state.  If  the  court  is 
a  court  of  record,  this  jurisdictional  question  can,  in  most 
states,  be  decided  with  comparative  ease.  Courts  of  record 
are  presumed  to  act  correctly.  When  a  court  of  record 
has  entered  judgment,  its  jurisdiction  over  the  defendant 
is  presumed,  unless  its  record  shows  the  contrary .'"'^  If, 
however,  the  record  shows  what  was  done  toward  accpiir- 
ing  jurisdiction,  nothing  else  will  be  presumed  to  have  been 
done."  An  apparent  exception  to  this  rule  is  where  the 
return  on  the  summons  shows  an  insuificient  or  void  service, 
and  the  judgment  or  decree  contains  recitals  or  findings  in 
favor  of  the  jurisdiction  of  the  court.  In  this  case  the  re- 
cital or  iinding  prevails.  The  court  is  presumed  to  have 
had  other  evidence  than  that  contained  in  the  return  on  the 
summons.''^  If  the  record  shows  that  the  court  acquired 
jurisdiction  of  the  defendant,  or  even  if  it  is  silent  on  that 
subject,  jurisdiction  will   always  be   presumed.'^"     In   most 

■*4Turney  v.  Tnrney,  24  111.  025;  Gibson  v.  Roll,  30  111.  172;  Morris  v. 
Hogle,  .37  111.  IfiO.    .See  also  Frconian  on  Judg'ts,  sec.  520. 

■i'^lUnks  V.  Neal,  44  Miss.  224. 

•^6  Freeman  on  Judg'ts,  sec.  124. 

iUb.,  sec.  125;  Moore  v.  Starks,  1  Oh.  S.  372;  Benson  v.  Cillej^  8  Oh. 
S.  013. 

^8 Freeman  on  Judg'ts,  sec.  130. 

i*9Fremann  oe  Judg'ts,  sees.  131,  132,  134. 


VOID    JUDICIAL    SALES.  25 

states  the  presumption  is  conclusive,  but  in  some  a  col- 
lateral attack  may  be  made  ;  and  if,  from  such  attack,  it 
appears  that  the  defendant  was  never  brought  before  the 
court,  the  judgment  will  be  held  void.*^  In  a  majority 
of  the  states,  if  the  proceeding  is  under  some  special 
statute  and  in  derogation  of  the  common  law,  the  juris- 
dictional presumptions  in  favor  of  a  court  of  record  are 
not  indulged.  The  inquiry  must  be  conducted  as  though 
the  court  were  not  a  court  of  record.'"  If  the  court  is 
one  not  of  record,  great  care  must  be  taken  to  see  that 
every  act  essential  to  jurisdiction  has  been  performed,^- 
and  performed  in  a  proper  manner.*^  No  presumptions 
are  indul<;ed  in  favor  of  the  iurisdiction  of  a  court  not  of 
record.  Its  jurisdiction  must  always  be  shown  affirma- 
tively.** According  to  many  of  the  authorities,  it  must 
be  shown  from  the  papers,  files  and  proceedings  in  the 
case.*^  On  the  other  hand,  the  fact  that  these  show  juris- 
diction is  not  conclusive.  They  are  not  records  importing 
absolute  verity.  They  may  be  contradicted.**'  The  courts 
havinor  the  administration  of  the  estates  of  deceased  or  of 
incompetent  persons  are,  in  some  states,  of  general,  and 
in  others  of  limited  or  special  jurisdiction.  Probably,  in  the 
majority  of  the  states,  they  are  of  the  latter  class.  Where 
this  is  the  case,  he  who  claims  title  under  these  courts 
must  show  affirmatively  (and  generally  from  their  records 
and  files)  the  taking  of  every  step  essential  to  jurisdic- 
tion.*^ Nothing  will  be  presumed  in  his  favor.  But  in 
several  of  the  states  these  courts  are  either  courts  of 
record,  or  are,  by  statute,  placed  on  the  same  footing  as 

^>  11).,  set;.  i:w. 

<i  Hi.,  sees.  123,  127. 

<^  It).,  sec.  517. 

*■'  If).,  sec.  521. 

+•  lb.,  .sees.  517,  527. 

^•'  lb.,  see.  518. 

« lb.,  sec.  517. 

■«7(;wiii  V.  M«;('aiTc>ll,  1  S.  &  M.  :?51  ;  liifftiey  v.  Coles,  6  Bosvv.  479;  K.'ll 
V.  Yoiiii^,  <i:5  III.  lOi;;  Taylor  v.  Walker,  1  lleisk.  73J ;  Gibbs  v.  Shaw,  17 
Wi.s.  201  ;   Koot  V.  McKeniii,  'M  Miss.  17. 


^6  VOID    JUDICIAL    BALES. 

courts  of  record,  with  relerciu'c  to  jurisdiction,  und  arc 
presumed  to  have  accjuircd  jurisdiction  over  all  parties  in 
interest,  except  where  their  records  and  proceedings  indi- 
cate the  contrary.** 

OKDERS  OF    SALE    IN  PROBATE  AND    HOW  AUTIIOKITY  TO  MAKE 

MUST  BE  OBTAINED, 

Sec.  9.  Probate  SaUfi  without  License  of  the  Court; 
when  Valid  and  when  Void. — In  execution  and  chancery 
sales,  jurisdictional  iuquiries  need  to  be  prosecuted  with 
much  less  care  and  frequency  than  in  the  consideration  of 
sales  made  by  executors,  administrators  or  guardians.  In 
a  suit  in  equity,  or  an  action  at  law,  if  the  complaint 
discloses  a  cause  which  the  court  was  competent  to  enter- 
tain and  decide,  and  the  record  shows  that  jurisdiction  was 
obtained  over  the  persons  of  the  defendants,  it  is  generally 
safe  to  forego  all  further  jurisdictional  inquiries.  But  in 
probate  proceedings,  jurisdictional  inquiries  are  material  at 
almost  every  stage,  and  to  be  inattentive  to  them  is  to  be 
guilty  of  rash  imprudence.  The  application  for  letters  tes- 
tamentary, or  of  administration,  the  citation  to  the  parties 
in  interest,  the  hearing  of  the  proofs  and  the  order  made 
thereon,  correspond  substantially  to  the  complaint,  the  issue 
and  service  of  process,  and  the  trial  and  judgment  at  law. 
But  here  the  case  at  law  ends,  while  the  case  in  probate  is  bnt 
scarcely  commenced.  What  makes  the  probate  proceed- 
ing still  more  perilous  is,  that  a  clear  case  of  jurisdiction 
at  this  stage  is  not  sufficient  to  support  subsequent  pro- 
ceedins:  tending  to  divest  the  title  of  the  heirs.  At  each 
subsequent  stage,  where  the  interest  of  the  heir  is  sought 
to  be  affected,  petitions  and  citations  are  usually  exacted  ; 
and,  in  most  courts,  are  treated  as  being  jurisdictional  in 
their  nature.  In  some  circumstances  an  executor,  adminis- 
trator, or  guardian,  may  sell  property  without  obtaining 

«Doe  V.  Bowen,  8  Ind.  197;  Gerrard  v.  Johnson,  12  Ind.  636;  Doe  v. 
Harvey,  3  Ind.  104:  Spaulding  v.  Baldwin,  31  Ind.  37G;  Valle  v.  Flem- 
ing. 19  Mo.  454. 


VOID    JUDICIAL    SALES.  27 

leave  from  the  court.  Where  the  statute  has  not  adopted  a 
diftereut  rule,  "  the  whole  personal  estate  of  the  testator  or 
intestate  rests  in  his  executor  or  administrator;"'*^  and  "an 
executor  or  an  administrator  has  an  absolute  power  of  dis- 
posal over  the  whole  personal  effects  of  the  testator  or  intes- 
tate, and  they  can  not  be  followed  by  creditors,  much  less  by 
leo'atees,  either  general  or  special,  into  the  hands  of  an 
alienee.  The  principle  is,  that  the  executor  or  administra- 
tor, in  many  instances,  must  sell  in  order  to  perform  his 
duty  in  paying  debts,  etc.,  and  no  one  would  deal  with  him 
if  liable  afterwards  to  be  called  to  an  account."^  Where 
the  common  law  rules  upon  the  subject  still  prevail,  a 
guardian,  though  not  vested  with  any  estate  in  the  personal 
property  of  his  ward,  has  an  ample  power  of  disposition 
over  it.  "  Though  it  be  not  in  the  ordinary  course  of  the 
guardian's  administration  to  sell  the  personal  property  of 
his  ward,  yet  he  has  the  legal  right  to  do  it,  for  it  is  en- 
tirely under  his  control  and  management,  and  he  is  not 
obliged  to  apply  to  court  for  direction  in  every  particular 
case.  The  question  as  to  the  due  exercise  of  the  power 
arises  between  the  guardian  and  his  ward  ;  and  I  apprehend 
that  no  doubt  can  be  entertained  as  to  the  competency  of 
the  guardian's  power  over  the  disposition  of  the  personal 
estate,  including  the  choses  in  action,  as  between  him 
and  a  bona  fide  purchaser. "^^  So  an  executor  might, 
at  common  law,  and  may,  under  the  statutes  of  most 
of  our  states,  sell  real  estate  devised  to  him  by  the  tes- 
tator, or  over  which  the  will  gives  him  a  power  of  sale.^^ 

«1  Lomax  on  Executors,  2d  ed.  367;  Goodwin  v.  Jones,  3  Mass.  518; 
Hays  V.  .Jackson,  <J  Mass.  152. 

501  Lomax  on  Executors,  2d  cd.  500;  Overlidd  v.  HuUitt,  1  Mo.  71'J; 
Williainson  v.  IJiaticli  Bunk,  7  Ala.  OOfi;  Bland  v.  Muncaster,  24  Miss.  02; 
Nunjent  V.  Giftord,  1  Atk.  'lo:{.  An  administrator  may  sell,  without 
an  order  of  court,  a  term  of  '.t!)0  yi-ars,  for  that  is  i)crsonalty  (Teti- 
tion  of  Gay,  5  Mass.  419);  hut  not  the  estate  of  a  niortijagee,  for 
that  is  realty.     Exparto.  Blair.  13  Met.  12(;. 

61  Field  V.  Schieff.'lin.  7  .Johns.  Ch.  153;  Tuttle  v.  Heavy,  5!)  Barb.  334; 
Tyler  on  Infancy  and  Coverture,  201-2. 

'■'2  1  Lomax  on  f:xecutors,  2d  ed.  3H4,  402,  .500,  and  authorities  in  the 
next  citation. 


28  VOID    JUDICIAL    SALES. 

Tho  power  of  a  testator  to  authorize  his  executor  to  sell  his 
n>al  or  personal  estate  witiiout  api)lying  to  court  for  per- 
inissi«)n,  is  ox-nerally  conceded,  thou<>;h  in  some  of  the 
states  sucli  sales  must  be  reported  to  and  approved  by  the 
court. '^'  The  nomination  of  certain  persons  as  executors, 
and  invest inij^  then)  with  power  to  sell  the  testator's  real 
estate  at  their  discretion,  and  without  any  license  from  the 
court,  indicates  that  the  testator  has  unusual  confidence  in  the 
fidelity  and  sagacity  of  the  persons  so  nominated  and  em- 
powered. This  unusual  and  somewhat  irresponsible  author- 
ity may,  in  the  judgment  of  the  testator,  be  safely  and 
even  advantageously  conferred  on  the  executors  named  in 
the  will,  but  it  is  hardly  probable  that  he  would  wish  to  see 
any  other  persons  invested  with  it.  Hence,  where  persons 
named  as  executors  and  invested  with  powers  of  sale,  have 
declined,  or  been  unable  to  act,  it  has  been  held  that  the 
special  confidence  reposed  in  them  by  the  will  could  not  be 
vested  in  any  other  person,  and  that  the  administrator 
with  the  will  annexed  had  no  power  to  make  sales,  except 
by  permission  of  the  court.**  But,  in  a  majority  of  cases, 
these  considerations  have  not  prevailed.  The  persons  ap- 
pointed in  place  of  those  named  by  the  testator  have  been 
regarded  as  competent  to  execute  all  the  powers  delegated 
by  the  will.^  Except  where  authorized  to  do  so  by  a  will, 
or  by  some  statute,  neither  an  administrator,  an  executor, 
nor  a  guardian  can  sell  real  estate  without  a  license  or  order 
of  sale  from  the  court.  A  sale  made  without  such  license 
or  order  of  coiu-t  is  not  a  mere  error  or  irregularity  which 
must  be  objected  to  by  some  proceeding  in  the  court  where 
the  license  ought  to  have  been   sought  and  granted  ;  and, 

MDelaney's  Estate,  49  Cal.  77:  Jackson  v.  Williams,  50  Ga.  553;  Dur- 
ham's Estate,  49  Cal.  491;  Crusoe  v.  Butler,  36  Miss.  170;  Bartlett  v. 
Sutherland,  24  Miss.  395;  Going  v.  Emery,  16  Pick.  107;  Payne  v  Payne, 
18  Cal.  291;  Larco  v.  Casaneuava,  30  Cal.  567;  Cal.  Code  C.P.,  sec.  1561. 

MTippett  V.  Mize,  30  Tex.  361. 

55Peehles  v.  Watt's  Adm'r,  9  Dana,  103;  Kidvvell  v.  Brummagim  ,  32 
Cal.  438;  Steele's  Ex'r.  v.  Moxley,  9  Dana,  139;  1  Wagner's  Stat,  of  Mo., 
p.  93,  sec.  1 ;  Gulley  v.  Prather,  7  Bush,  167. 


VOID    JUDICIAL    SALES.  29 

which,  if  not  so  objected  to,  is  waived  or  riititied.  It  is  a 
proceeding  without  any  legal  support.  A  conveyance  made 
in  pursuance  of  it  has  no  force  whatever.  It  may  ])e  shown 
to  be  void  when  collaterally  attacked.  In  fact,  no  attack, 
collateral  or  otherwise,  need  be  made.^  The  chiimant  un- 
der the  sale  could  not  show  a  prima  facie  case.  In  many 
of  the  states  the  power  of  guardians,  executors  and  admin- 
istrators over  personal  property  does  not  extend  to  its 
transfer  without  leave  of  the  court.  An  attempted  trans- 
fer, made  without  such  leave  is,  in  such  states,  void.^^ 

Sec.  10.  Petition  for  Order  of  Sale  must  be  by  a  Per- 
son Competent  to  Present  it. — We  now  pass  to  the  most 
numerous  class  of  probate  sales — those  which  must  be 
sanctioned  by  a  pre-existing  order  of  court.  This  order 
must,  in  turn,  l)e  supported  by  certain  pre-existing  facts. 
In  fact,  the  order  of  sale  bears  more  resemblance  to  a 
judgment  ol)tiiined  in  a  new  action,  than  to  an  order  made 
in  a  pre-existing  proceeding  in  which  jurisdiction  has  al- 
ready been  acquired.  To  ()l)tain  an  order  of  sale,  a  peti- 
tion or  complaint  must  be  filed,  a  citation  or  notice  must 
be  issued  and  served,  and  a  complete  adversary  proceeding 
•conducted.  Any  jurisdictional  defects  in  this  proceeding 
are  as  fatal  as  if  connected  with  the  original  grant  of  ad- 
ministration. And,  what  is  worse,  defects  which,  in  actions 
at  law,  would  l)e  treated  as  mere  errors,  are,  in  probate  pro- 
<^eedings,  counted  as  incurable  jurisdictional  infirmities.  If  a 
comphiint  in  an  action  at  law,  or  in  a  suit  in  e(iuity,  does 
not  state  facts  sufficient  to  entitle  the  complainant  to  relief, 
its  deficiency  must  be  pointed  out,  or  a  judgment  or  de- 
<^ree    is   likelv   to  be  entered    whidi,  though    revcrsable   on 

«  Tippott  V.  Mize,  IW  Tex.  'M'A  ;  IJcunl  v.  Kowaii,  1  IMcI.can,  1:5");  liob- 
in?on  V.  Martel,  11  Tex.  14t);  Low  v.  Pindy,  2  Lans.  4'2-2;  Aiulcison  v. 
Tiirii(!r,  3  A.  J\.  Marsh.  1:51;  Ficiicli  v.  CiiiTicr.  47  N.  H.  S,S;  Ilite  v. 
Taylor,  :{  A.  K.  Marsh.  :{."):{;  (Joforlli  v.  I>oii;,^\v()rtli,  4  Oh.  12i);  .Jackson 
V.  Todd,  1  Diiteli.  121;  (Jrlstrop  v.  Moore,  20  Miss.  20(;;  Bell's  Appeal. 
m  Pa.  St.  4!lS. 

•"KeiKlall  V.  Mill.'i-.  !i  Cal.  .")'.i|  ;  \)v  La  .Muntairnie  v.  I'liioii  Ins.  Co.,  42 
C'al.  21)1. 


30  VOID    JUDICIAL    SALES. 

appesil,  is  valid  until  so  reversed.  If  the  e()inj)l:iiiit  were- 
filed  by  some  one  having  no  eapacity  to  maintain  the  suit 
or  action,  that  inoai)aoity  wouhl  l)e  ealled  to  the  attention 
of  the  court  in  some  manner;  or,  if  that  were  not  done,  a 
judgment  would  probably  be  entered  in  favor  of  plaintiff, 
and  this  judgment  would  not  be  void.  But  the  presenta- 
tion of  a  j)etition  in  prol)ate  by  a  person  authorized  to  so 
petition  is  a  jurisdictional  fact.  If  it  be  presented  by  some 
one  not  qualiticd  to  present  it,  there  is  no  jurisdiction — no 
power  to  hear  and  determine  it.  If  the  court  erroneously 
grants  the  prayer  of  the  petition,  there  need  be  no  appeal — 
the  order  is  void  and  can  not  support  a  salc.'^  In  the  case 
of  two  or  more  acting  executors  or  administrators,  a  peti- 
tion for  an  order  of  sale,  preferred  by  any  less  than  the 
whole,  is  irregular,  but  probably  is  not  so  worthless  that  the 
court  can  base  no  valid  action  upon  it.^^  If  the  petition  is 
by  a  person  acting  as  administratoi-,  but  he  has  never  qual- 
ified as  such,^  or  is  a  special  administrator  not  authorized 
by  law  to  present  the  petition  or  make  the  sale,''^  or  it  ap- 
pears from  the  whole  record  of  the  probate  proceedings  that 
his  appointment  was  illegal,  then  the  license  and  the  sale 
based  thereon  are  both  void.''^ 

Sec.  1  ] .  There  7nust  be  a  Sufficient  Petition  for  License  to 
^ell — What  Petitions  are  Insufficient. — As  in  an  action  at 
law,  the  declaration  should  aver  the  facts  entitling  the  plain- 
tifl"  to  judgment,  so  in  a  petition  in  probate,  for  authority  to 
sell  property,  the  matters  necessary  to  justify  the  sale  must 

58Minerv.  Miller.  10  Tex.  319;  Washington  v.  McCaughan,  34  Miss.. 

304. 

59  Fitch  V.  Witheck,  2  Barb.  Ch.  IGl;  Gregory  v.  McPherson,  13  Cal. 
578;  Downing  v.  Kugar,  21  Wend.  178.  See,  as  sustaining  petitions  by 
one  administrator  only,  .Jackson  v.  Robinson,  4  Wend.  437;  De  Bardela- 
ben.  V.  Stoudenniire,  48  Ala.  043. 

60  Pryor  v.  Downey,  .50  Cal.  389.  ^ 
"Long  V.  Burnett,  13  Iowa,  28. 

62  Frederick  v.  racijuette,  19  Wis.  541;  Sitznian  v.  Pacquette,  13  Wis. 
291 ;  Chase  V.  Ross,  30  Wis.  267;  Sumner  v.  P.arker,  7  Mass.  79;  AVithers 
V.  Patterson,  27  Tex.  ."jOI  ;  Ex  parte  Barker,  2  Leigh,  719;  Miller  v.  Jones,. 
26  Ala.  247.  f  Ser  <//*;^'.  see.  2. 


VOID    JUDICIAL    SALES.  31 

be  set  forth.  In  truth,  this  necessity  seems  to  be  more  im- 
perative in  the  case  of  the  petition  than  in  that  of  the 
declaration.  The  judgment  of  a  court  of  law  can  rarely^ 
if  ever,  be  treated  as  void  because  pronounced  upon  an 
insufficient  complaint.  An  order  in  probate  must  be  sup- 
ported by  a  petition  sufficient  in  substance  to  show  a  legal 
cause  for  the  order.  A  license  to  sell  granted  without  any 
petition  therefor  is  void.''^  But  a  mere  petition  is  not 
enough.  The  statutes  of  each  state  designate  the  contin- 
gencies in  which  the  real  estate  of  a  deceased  or  incompetent 
person  may  be  ordered  to  be  sold.  The  probate  courts 
have  no  power  to  license  a  sale  in  the  absence  of  these 
contingencies.  The  statute  prescril)es  the  limit  of  the 
judicial  authority.  Action  beyond  this  limit  is  not  irregular 
or  erroneous  merely  ; — it  is  non-judicial.  If  the  causes  of 
sale  designated  by  statute  are  too  few,  relief  must  be  sought 
from  the  legislature.  An  order  of  sale  made  to  accomplish 
a  purpose  not  sanctioned  by  statute,  or  based  upon  a  neces- 
sity not  recognised  by  statute,  is,  in  legal  effect,  coram  non 
judice.  It  can  not  justify  a  sale  made  in  pursuance  of  its 
directions."  The  theory  of  the  law  is  that  the  probate 
courts  have  no  general  authority  to  dispose  of  the  estate  in 
process  of  administration  ;  that  their  power  of  disposition 
is  special  and  limited,  and  that  he  who  relies  upon  the 
power  must  disclose  a  state  of  facts  sufficient  to  call  it  into 
being.  It  is  also  essential  that  the  petition  state  a  sufficient 
cause  of  action.  The  order  of  the  court  is  based  upon  the 
petition,  and  can  not  draw  its  support  from  beyond  the 
petition,  unless  the  statute  otherwise  provide.      If  the  peti- 

63  Aliibuma  Conference  v.  Price,  42  Ala.  ;U»;  Wyatt's  Adni'r  v.  Ranibo, 
29  Ala.  510;  Finch  v.  Edniondson,  9  Tex.  501.  But  in  Williers  v.  ralter- 
8on,  27  Tex.  499,  and  in  Alexander  v.  iMavciic  k.  18  Tex.  179,  it  was 
intimated  that  the  absence  of  a  i)etition  ini^^lil  not  be  fatal. 

M  Honipart  v.  Lucas,  21  Mo.  59S;  Farrar  v.  Dean,  24  M<j.  10;  Newconib 
V.  Smith,  5  Oh.  448;  Withers  v.  Patterson,  27  Tex.  499;  Strouse  v.  Dren- 
nan,  41  Mo.  298;  Beal  v.  Harmon,  38  Mo.  435;  Ikelheimer  v.  Chapman, 
32  Ala.  G7(j;  Sanford  v.  Gran<;er,  12  Barb.  392;  Wood ru IT  v.  Cook.  2 
Kdw.  Ch.  259;  Cornwairs  Estate.  1  Tucker,  250;  Hall  v.  Cliapmaii  35 
Ala.  .553. 


32  VOID    JUDICIAL    SALES. 

tiou  .st  at  OS  no  cause  of  sale,  it  would  not  be  competent  to 
prove,  in  support  of  the  sale,  that  the  court  in  fact  received 
evidence  of  facts  not  relied  upon  by  the  petition,  and  that 
its  action  was  in  fact  induced  by  proof  of  the  causes  of  sale 
omitted  from  the  petition  but  specified  in  the  statute.^'' 
Some  of  the  statutes  designate,  in  general  terms,  the  pur- 
poses for  which  a  sale  may  be  licensed,  and  declare  that  the 
application  for  such  license  must  be  in  writing  and  must 
show  the  necessity  for  the  sale.  Other  statutes  enumerate 
with  considerable  particularity  the  matters  to  be  inserted  in 
the  petition.  Even  where  the  statute  does  not  contain  any 
special  enumeration  of  the  matters  to  be  stated,  it  is 
evident  that  a  petition  may  be  fiitally  defective  :  1st,  when 
it  seeks  an  improper  object;  as,  for  instance,  the  sale  of 
property  for  a  supposed  benefit  to  the  estate,  when  the 
statute  authorizes  a  sale  for  no  such  purpose;  and,  2d, 
when  a  proper  object  is  sought,  but  the  sale  is  not  shown 
to  be  necessary  to  obtain  it,  as  where  a  sale  is  asked  to  pay 
debts,  but  no  debts  are  shown  to  exist,  or  the  deficiency  of 
personal  assets  with  which  to  pay  the  debts  is  not  affirmed. 
"  A  long  series  of  decisions  in  this  state — uniformly  holding 
to  the  same  rule — has  determined  that  the  application  of  an 
executor  or  administrator  for  the  sale  of  lands  belonging  to 
the  estate  is  a  special  and  mdependent  proceeding ;  that 
the  jurisdiction  of  the  probate  court  depends  absolutely  on 
the  sufficiency  of  the  petition ;  in  other  words,  on  its  sub- 
stantial compliance  with  the  requirements  of  the  probate 
act.  Thougli  the  proceeding  for  the  sale  occurs  in  the 
general  course  of  administration,  it  is  a  distinct  proceeding 
in  the  nature  of  an  action,  in  which  the  petition  is  the  com- 
mencement and  the  order  of  sale  is  the  judgment.  The 
necessity  for  a  sale  is  not  a  matter  for  the  administrator 
or  executor  to  determine,  but  is  a  conclusion  which  the 
court  must  draw  from  the  facts  stated,  and  the  petition 
must  furnish  materials  for  the  judgment.""*'     The  policy  of 

«  Prj'or  V.  Downey,  50  Cal.  .389. 

'*'  Pryor  v.  Downey.  50  Cal.  398;  Ilaynes  v.  Meeks,  20  Cal.  288;  Gregory 


VOID    JUDICIAL    SALES.  33 

the  hiw  has  always  been  in  favor  of  preservmg  the  real 
estate  of  heh-s.  Hence,  if  an}^  necessity  arises  for  the  rais- 
in o^  of  monev,  resort  must  first  be  had  to  the  personal 
estate  of  the  heir  or  ward.  It  is  not  probable  that  a 
petition  for  the  sale  of  real  estate  would  give  jurisdiction  to 
any  probate  court  in  the  Union,  if  it  failed  to  show  that  the 
personal  estate  was  either  exhausted  or  was  insufficient  to 
produce  the  requisite  funds. ''^  By  a  statute  of  New  York, 
an  administrator,  suspecting  the  personal  estate  of  the 
deceased  to  be  insufficient  to  pay  the  debts,  was  required  to 
make  an  account  of  such  personal  estate  and  deliver  it  to 
the  judge  of  the  court  of  probate,  or  the  surrogate  of  the 
county,  and  request  his  aid  in  the  premises.  Thereupon, 
an  order  issued  to  the  persons  interested,  to  show  cause 
why  the  real  estate  should  not  be  sold.  The  account,  being 
essential  to  showing  the  deficiency  of  personal  assets,  was 
treated  as  jurisdictional.  A  sale,  in  its  absence,  was  always 
held  void.*'^  In  most  states  the  proceedings  for  the  sale  of 
real  estate  are  adversary  proceedings.  In  such  proceedings 
parties  defendant,  as  well  as  plaintift*,  are  essential.  As  the 
heirs  occupy  the  position  of  defending  parties,  the  petition 
shouhl  show  who  they  are,  in  order  that  they  may  be 
])r()iight  into  court.*^  The  failure  to  name  them  has  been 
held  fatal.™    The  petitioner  can  not,  at  the  hearing,  al^andon 

V.  McPherson,  13  Cal.  5G2;  Hall  v.  Chapnian,  35  Ala.  553;  Jackson  v. 
Kobinson,  4  Wend.  430;  Fitch  v.  Miller,  20  Cal.  352.  But  bj' section  1518 
Code  Civil  Procedure  of  California,  "a  failure  to  set  forth  the  facts 
showiiif^  the  sale  to  be  necessary  will  not  invalidate  the  subsequent  pro- 
i'ffdin;^s,  if  tlie  defect  be  supplii-d  l)y  the  proofs  at  the  hearing,  and  the 
general  facts  showing  the  necessity  be  stated  in  the  order  directing  the 
sale."     See  also  sec.  1537  Cal.  C.  C.  P. 

B7 Gregory  v.  Tabor.  II)  Cal.  307;  Stuart  v.  Allen. IG  Cal.  173;  Wattles  v. 
Hyde,  I)  Conn.  10. 

es  Bloom  v.  Uiirdirk.  1  Hill.  i:i();  Corwin  v.  .Mcrritt,  3  Barb.  311  ;  Ford 
v.  Walswortli.  i."i  Wend,  l.")!);  .lackson  v.  ( Jrawfords,  12  Wend.  .');!3 ;  Atkins 
v.  Kiiinan,20  Wend.  2ll;  Wood  v.  McChesney,  40  Barb.  417.  See  Forbes 
V.  Halsey,  2(i  N.  Y.  .53. 

•»  Morris  v.  Hogle.  37  III.  1.50;  Hoard  v.  Hn:iid,  11  Ala.  500;  Turney  V. 
Young.  2-2  111.  253. 

™(iuy  V.  Pierson,  L'j  Jnd.  18.     Contni,  thai    tiir  omission  of  tlir  names 

3 


.vt  VOID    JUDICIAL    SALES. 

the  irrmiiuls  stalril  in  his  poiition  iiiul  ohtiiin  ;i  liccnsi>  to 
sell  on  sonic  other  ground.  A  court  having  jurisdiction  ol" 
a  petition  for  a  sale  to  pay  debts,  can  not  thereon  grant  a 
vaTul  license  to  sell  to  promote  the  interest  of  the  heirs. '^ 
The  property  sought  to  be  sold  must  generally  be  described 
in  the  petition.  No  jurisdiction  is  obtained  over  that  which 
is  not  described.  A  license  to  sell  the  whole  of  the  real 
estate  of  a  decedent,  based  on  a  i)etition  to  sell  a  part,  is. 
void."  But  a  description  will  not  be  inadequate  to  support 
the  order  of  sale,  if  it  is  such  as  would  be  sufficient  in  a 
conveyance,  or  as  is  rendered  intclligi])lo  by  the  aid  of  facts 
of  which  the  court  has  judicial  knoAvledgc."  The  petition 
need  not  state,  in  Missouri,  that  the  property  belonged  to 
the  decedent.'* 

Sec.  12.  Statutes  Designating  what  Petition  for  Order' of 
Sale  must  Contain. — Where  a  statute  enumerates  the  mat- 
ter to  be  contained  in  the  petition  for  the  sale  of  real  estate, 
its  object  is  to  compel  petitioners  to  disclose  the  supposed 
necessity  of  the  sale,  and  also  to  furnish  information  which 
will  aid  the  court  in  determining  upon  the  best  course  of 
action  in  case  it  finds  a  sale  to  be  necessary.  The  statute 
of  California  exacts  more  than  any  other  which  has  come 
under  our  observation.''  It  requires  a  verified  petition  set- 
ting forth:  1,  the  amount  of  personal  property  that  has 
come  into  the  hands  of  the  administrator  and  how  much 
remains  undisposed  of;  2,  the  debts  of  the  decedent ;  3,  the 

of  tlie  lioirs  is  an  irregularity  merely:  Gibson  v.  Roll,  27  111.92;  Stow 
V.  Kiniball,  2S  111.  106;  Morris  v.  Hogle,  37  111.  150. 

'1  Williams  v.  Childress,  25  Miss.  78. 

"  Verry  v.  McClellan.  0  Gray,  535;  Tenuy  v.  Poor,  14  Gray,  502. 

73  Smitlia  V.  riouriioy,  47  Ala.  345.  "Southeast  quarter  of  sect.  19  T.. 
12:9''  is  fatally  defective  as  a  description.  Weed  v.  Edmonds,  4  Tnd.  4GS. 
"  Section  12  T.  17  R.  21"  was  held  suffitdent  in  Wright  v.  Ware,  50  Ala. 
.549. 

'■•Trent  v.  Trent,  24  Mo.  307. 

"5C.  C.  P.  of  Cal..  sec.  1.537.  See  also  Kurd's  Stat,  of  111.,  pp.  121,  123; 
Das.sler's  Stat,  of  Kans.,  sec.  2027;  Oonip.  Laws  Mich.  1871,  p.  1424,  sec. 
4.540;  1  Biss.  Stat,  of  Minn.,  p.  073,  see.  178;  Wag.  Stat.  Mo.,  pp.  94,  9G,. 
sees.  10,  25. 


VOID    JUDICIAL    SALES.  35 

amount  due  or  to  become  due  on  the  family  nllowance  ; 
4,  the  debts,  expenses  and  charges  of  administration 
accrued  and  to  accrue  ;  5,  a  general  description  of  all  the 
real  property  of  which  the  decedent  died  seized,  or  in  which 
he  had  any  interest,  or  in  which  the  estate  has  acquired  any 
interest,  and  the  condition  and  value  thereof,  and  Avhether 
the  same  be  community  or  separate  property  ;  6,  the  names 
of  the  heirs,  legatees  and  devisees  of  the  deceased,  so  far 
as  known  to  the  petitioner.  If  any  of  the  matters  here 
enumerated  can  not  be  ascertained,  it  must  be  so  stated  in 
the  petition.'^  "Whenever  the  question  has  arisen,  the 
Supreme  Court  of  this  State  has  decided  that  the  power  of 
the  probate  court  to  order  a  sale  depended  upon  a  petition 
in  substantial  compliance  with  the  statute."  In  Missouri, 
if  any  person  die  and  his  personal  estate  be  insufiicient  to 
pay  his  debts  and  legacies,  his  executor  or  administrator 
shall  present  a  petition  stating  the  facts. ''^  The  petition 
shall  be  accompanied  by  a  true  account  of  his  administra- 
tion ;  a  list  of  debts  due  to  and  by  the  decedent,  and 
remaining  unpaid,  and  an  inventory  of  the  real  and  personal 
property,  with  its  appraised  value,  and  all  other  assets.^^ 
It  seems  now  to  be  settled,  in  that  State,  that  the  jurisdic- 
tion of  the  court  attaches  on  the  filing  of  the  petition,  and 
that  the  omission  of  the  accounts  and  lists,  required  by 
statute  to  accompany  it,  is  not  fatal. ^  In  Wisconsm,  and 
several  other  states,  the  statute  provides  that  sales  shall  not 
be  avoided  on  account  of  any  irregularity,  if  it  api)ears  : 

76 C.  C.  P.  of  Cal.,  sec.  1537. 

"Gre{jjory  v.  McPhcirson,  13  Cal.  562;  Stuart  v.  Allen,  Hi  Cal.  473; 
Townsend  v.  Gordon,  10  Cal.  188;  Cre^'ory  v.  Taber,  19  Cal.  397;  Haynes 
V.  Meeks.  'iO  Cal.  2SS;  Fitch  v.  Miller,  20  Cal.  352;  also,  to  same  eflect, 
Ackley  v.  I)y<?ert,  33  Barb.  190;  Broe  v.  Bree,  51  111.  3<)7, 

781  Wag.  Stat,  of  Mo.,  p-  91.  sees.  10.  11. 

7!>1  Waf,'.  Stat,  of  Mo..  |).  91,  sec.  22. 

80 Overton  v.  .loliiisoii,  17  Mo.  442;  Mount  v.  X'allc,  19  Mo.  021;  Gray- 
son V.  Weddle,  03  Mo.  523;  I'attee  v.  Tlionias,  58  Mo.  103.  These  ca.ses. 
we  think,  are,  in  princii)lc,  directly  opposed  to  tlie  New  York  cases- 
Bloom  V.  Biirdi'k.  1  Hill.  130;  Koni  v.  Walswortli.  15  Wend.  4.50; 
.Jack<oii  V.  Crawfords.  12  Wfnd.  533. 


3t5  >OIl)    JUDICIAL    SALES. 

1,  that  the  executor,  adiuinistrator  or  guardian  was  licensed 
In  make  the  saU>  I)y  the  probate  court  having  jurisdiction; 
l\  that  ho  gave  a  bond  on  the  granting  of  the  license; 
;^,  that  he  took  the  oath  as  })rcscribed  by  statute  before 
making  the  sale  ;  4,  that  he  gave  the  notice  of  the  sale  ; 
and,  f),  that  the  premises  were  sold  in  good  faith  and  the 
sale  contirnied.  Under  this  statute,  sales  based  on  defective 
l)etitions  are  held  valid. ^^ 

Sec.  lo.  Petitions  for  Sale  liherally  Construed — WJien 
other  Papers  may  be  Referred  to. — The  rule  of  law  that 
declares  void  probate  sales  based  on  insufficient  petitions,  is 
very  harsh  in  its  operation.  To  avoid  the  necessity  of 
applying  the  rule,  the  courts  will  construe  i)etitions  as  lib- 
erally as  possible.  They  will  not  require  the  use  of  the 
exact  lauiTuage  of  the  statute  ;  thev  Avill  forgive  all  errors 
of  form  ;  they  will  regard  it  as  sufficient  if  the  matters 
stated  are  substantially  those  required  to  be  stated  ;  and,  in 
interpreting  the  language  used,  they  will  seek  to  find  in  it 
something  to  support,  rather  than  to  destroy  the  title  based 
on  the  probate  proceedings.*'-  In  drafting  the  petition, 
reference  may  be  had  to  some  other  paper  on  file,  and,  by 
such  reference,  this  paper  may  be  made  a  part  of  the 
petition.  The  petition,  for  instance,  may  state  that  a  full 
description  of  the  real  and  personal  estate  can  be  ascer- 
tained from  the  inventory  on  file.  Where  this  is  done,  it 
will  be  sufficient  that  this  jurisdictional  fact  appears  from 
the  inventory.^  But,  to  justify  a  )-efercnce  to  the  inventory 
or  other  paper  on  file,  "  it  must  have  been  referred  to  in  the 

''I  Reynolds  v.  Schmidt,  20  Wis.  374;  Mohr  v.  Tulip,  40  Wis.  66;  Mohr 
V.  MiinierreOC.  L.  X.  270;  1  Biss.  Stat.  Minn.,  j).  680,  sec.  223;  Coon 
V.  P>}'.  6  Mich.  50G;  Woods  v.  Monroe,  17  Midi.  238. 

w  Morrow  v.  AVeed,  4  la.  77;  King  v.  Kent's  heirs,  29  Ala.  542;  Moffitt 
V.  Moffitt,  69  111.  641;  De  Bardela1)en  v.  Stoundenmire,  48  Ala.  643; 
Fitch  V.  Miller,  20  Cal.382:  Ilaynes  v.  Meeks,  20  Cal.  315;  Wright  v. 
Ware.  50  Ala.  .549;  Maurr  v.  Parrish,  26  Oh.  Stat.  636;  Wing  v.  Dodge,  80 
111.  .564;  Bowen  v.  Bond,  80  111.  3.51. 

83Bent7/sEst.,  36Cal.  687;  Stuart  v.  Allen,  16  Cal.  501;  Sheldon  v. 
Wright.  7  Barb.  47. 


VOID    JUDICIAL    SALES.  37 

petition  so  as  to  become  a  part  of  it  for  the  purpose  of 
reference."^ 

Sec.  14.  Petition  need  not  he  True. — The  jurisdiction 
of  the  court  over  the  subject-matter  attaches  on  the  filinu- 
of  a  petition  sufficient  in  form.  The  matter  stated  in  the 
petition  may  or  may  not  be  true.  The  functions  of  the 
court  are  of  such  a  character  that  it  may  inquire  into  the 
truth  or  falsity  of  the  petition.  The  petition  may  be 
regarded  as  a  comphiint.  The  heirs,  when  jurisdiction  over 
them  is  ol)tained,  may  be  treated  as  entering  a  general 
denial.  The  order  of  the  court,  granting  or  refusing  the 
prayer  of  the  petition,  is  in  the  nature  of  a  judgment  con- 
clusively establishing  that  the  sale  is  or  is  not  necessary. 
If  erroneous,  it  must  be  corrected  by  appeal,  or  some  other 
appropriate  proceeding.  It  can  not  be  collaterally  avoided 
by  showing  that  the  petition  was  false. ^ 

Sec.  15.  Cases  holding  that  no  Notice  is  Necessary. — 
We  have  already  spoken  of  the  proceeding  in  probate  to 
obtain  a  sale  of  real  estate,  as  an  independent,  adversary 
proceeding  in  personam.  If  it  be,  in  fact,  such  a  proceed- 
ing:, then  the  defendants  must  be  brouuht  before  the  court 
by  something  which  is  equivalent  to  the  service  of  process, 
and  given  an  opportunity  of  resisting,  in  case  they  deem 
resistance  proper  to  be  made.  Nearly  all  the  statutes  require 
some  order  to  show  cause  against  the  petition,  to  issue  and 
to  be  served  on  the  parties  in  interest,  either  personally  or 
by  publication.  In  a  few  of  the  states  this  requirement  is 
not  jurisdictional.  The  i)urchaser  need  not,  in  those  states, 
ask  whether  the  notice  to  show  cause  against  the  petition 
was  or  was  not  given.  The  sale  is  valid  if  supported  by  a 
sufficient  petition  and  an  order  of  sale  made  thereon.  "On 
;t  pi-()ccc(ling  to  sell   the  rc-il   estate  ot  an    in(lol)ted  estate, 

>w  Gregory  v.  TiiIxm-,  V.)  (J:il.  101). 

ssjacksou  V.  Cnuvfords,  12  Wcml.,  .^JIJ;  Fiti-h  v.  Miller,  20  Cul.  H.S2; 
Stuart  V.  Allen,  Ki  Cal.  47:J;  llaynes  v.  Meeks,  20  Cal.  288;  MeOaiiley  v. 
Harvey.  4;K'al.  407;  (Jn-riuiirs  lessee  v.  Astor,  2  How.  U.  S.  :{:!!l;  IJoweii 
V.  Bond,  80  111.  :{51;  Grayson  v.  Weddle,  (!:{  Mo.  ."^2;}. 


38  VOID    .1U1)IC1.\L    SALES. 

there  are  no  adversary  parties,  the  proceeding  is  in  rem,  the 
a(hniiiislrator  represents  the  hind;  they  are  anahigous  to 
proceedings  in  the  admiralty,  where  the  only  qnestion  of 
jurisdiction  is  the  power  of  the  court  over  the  thing — the 
sul)j(>ct-niattcr  l)efore  them — without  regard  to  the  persons 
Avho  may  have  an  interest  in  it ;  all  the  world  are  parties. 
Ill  the  (Orphan's  Court,  and  all  courts  who  have  power  to 
sell  the  estates  of  intestates,  their  action  operates  on  the 
estate,  not  on  the  heirs  of  the  estate;  a  purchaser  claims, 
not  their  title,  but  one  paramount.  The  estate  passes  to 
him  by  operation  of  law.  The  sale  is  a  proceeding  in  rem, 
to  which  all  claiming  under  the  intestate  are  parties."*' 

Sec.  10.  Notice  of  Petition — Cases  holding  it  Indispens- 
ahJe. — A  very  decided  majority  of  the  authorities  is  opposed 
to  the  principles  stated  iu  the  preceding  section.  This 
majority  declares  that  the  proceeding,  to  obtain  an  order  to 
sell  real  estate,  is  a  new  and  independent  proceeding  in  per- 
sonam, in  which  the  petitioner  is  the  plaintiff,  the  petition 
is  the  complaint,  the  parties  whose  property  is  to  be  sold 
are  the  defendants,  and  the  order  to  show  cause,  or  the 
notice  to  appear  is  the  summons  ;  that  the  defendants  are 
liot  in  court  until  this  summons  is  served,  or  its  service  has 
been  waived  by  persons  competent  to  waive  it ;  and  that 
whenever  it  is  conceded  or  shoAvn  that  any  person  inter- 
ested was  not  summoned  to  appear,  substantially  as  provided 
})y  statute,  the  whole  proceeding,  as  against  him,  is  utterly 
void.^     The  administrator,  as  such,  has  no  control  over  the 

seOrignon's  Le?^ee  v.  Astor,  2  IIow.  U.  S.  338;  Beauregard  v.  New 
Orleans.  18  IIow.  U.  S.  497;  Corastock  v.  Ciaw^ord,  3  Wall.  39G;  Tongue 
V.  Morton,  G  H.  «&  J.  21 ;  McPherson  v.  Cundiff,  11  S.  &  K.  422;  Doe  v. 
McLoskey.  1  Ala.  708;  Perkins  v.  Winter,  7  Ala.  855;  Matlieson  v.  Ilearin, 
2!)  Ala.  210;  DuvaPs  heirs  v.  P.  and  M.  Bank,  10  Ala.  G3G;  Field's  heirs 
V.  Goldshy,  28  Ala.  224;  Ratchet  v.  Batcher's  Adm'r,  41  Ala.  39;  Kogers 
V.  Wilson,  13  Ark.  .507;  Sheldon  v.  Newton,  3  Oh.  St.  494;  George  v. 
Watson.  19  Tex.  354;  Mohr  v.  Manniere,  9  C.  L.  N.  270;  Ewing  v.  Highy, 
7  Oh.  Pt.  1,  p.  198;  Robh  v.  Irwin,  15  Oh.  G89;  Snevely  v.  Lowe,  18  Oh. 
308;  Benson  v.  Cilley,  8  Oh.  St.  G14— overruling  Adams  v.  Jeffries,  12 
Oh.  272, 

■■"Halieck  v.  Moss,  17  Cal.  339;  Coy  v.  Downie.  M  Fla.  54-1;  Clark  v. 


VOID    JUDICIAL    SALES.  39 

real  estate  left  by  the  intestate.  His  authority  to  sell,  if 
it  exists,  was  conferred  by  the  orders  of  the  surrogate  and 
the  other  proceedings  before  him.  The  latter  derives  his 
power  from  the  statutes,  and  in  order  to  confer  the  author- 
ity upon  the  administrator  to  transfer  the  title  to  the  land, 
and  thus  disinherit  the  heirs  of  the  intestate,  it  is  requisite 
that  the  directions  of  the  statute,  so  far  as  they  relate  to 
the  acquiring  of  jurisdiction  of  the  subject-matter,  and  of  the 
parties  to  be  affected  by  the  proceedings,  should  be  strictly 
complied  with.  These  principles  are  elementary,  and  no 
<-itation  of  authority  to  sustain  them  is  necessary.^ 

Sec.  17.  The  Service  of  Notice  on  a  Minor  can  not  be 
Waived  nor  Dispensed  loith. — It  can  not  be  waived  by  the 
minor  because  he  is  incompetent  to  act  for  himself.® 
Neither  can  it  be  waived  by  a  guardian,  unless  the  statute 
in  direct  terms  invests  him  with  that  power .^^  Nor  can  the 
court  by  any  means  exonerate  itself  from  complying  with 
the  statute.  It  can  not,  without  service  of  the  notice  on  the 
minor,  appoint  any  guardian  ad  litem  for  him.  The  ap- 
pointment of  such  guardian  and  his  subsequent  appearance 
in  the  cause  as  the  representative  of  the  minor  can  not  cure 
any  jurisdictional  defect,  nor  tend  to  the  validation  of  a 
proceeding  otherwise  void.''^  Service  of  notice  on  the 
guardian  of  a  minor  does  not,  in  the  absence  of  a  statute  to 
that    effect,    dispense    with    the    necessity  for  serving  the 

Thompson,  47  111.  25;  Doe  v.  Bowen,  8  Ind.  197;  Gerrard  v.  Thompson, 
12  Ind.  030;  Babbitt  v.  Doe.  4  Ind.  355;  Good  v.  Xorlej',  28  Iowa,  188; 
Washburn  v.  Carinichiiftl.  32  Iowa,  475;  Valle  v.  Fleming-,  19  Mo.  454; 
€amijbi:ll  v.  Brown,  (J  How.  Miss.  100;  Winston  v.  McLendon,  43  Miss. 
2.54;  Piickett  v.  McDonald,  0  How.  Miss.  209;  Vii;k  v.  Maj'or,  1  How. 
Miss.  379;  Hamilton  v.  Lockhart,  41  Miss.  460;  French  v.  Jloyt,  6  N.  H. 
370;  Corwln  v.  Morritt.  3  Barb.  311;  Schneider  v.  McFarland.  2  X.  Y. 
1.59;  Dakin  v.  HikIsoii.  OCow.  222;  Fiske  v.  Kcllogj,^  3  Oregon,  503;  Tay- 
lor V.  Walker,  1  Ileisk.  734;  Gibbs  v.  Shaw,  17  Wis.  197;  Blodgett  v. 
Hitt,  29  Wis.  K;!). 

asSil)ley  v.  WaMlle,  10  N.  Y.  185. 

K*  Winston  v.  .Mr|,en(lon,43  Miss.  251. 

^'Doe  V.  Anderson.  5  Ind.  33. 

"1  ("hambers  v.  .Jones,  72  111.  275;  Moore  v.  Starks,  1  Oh.  St.  .309;  Good 
V.  Norley,  28  Iowa,  188;  Clark  v.  Thompson,  17  111.  25. 


40  VOID   JUDICIAL    SALES. 

minor  hiinsolf."'"-  In  New  York,  a  guurdian  must  be  ap- 
pointed for  minor  heirs  on  tiling  the  petition  ;  and  notiee 
must  thereafter  ho  given  toheins.  The  giving  of  the  notice 
in  advance  of  the  appointment  of  the  guardian  is  invalid.''* 
If  the  person  apjilving  for  the  license  to  sell  is  also  the 
guardian  of  the  minors,  his  [)osition  as  petitioner  is  incom- 
patihle  with  his  duty  as  guardian.  He  can  not,  therefore, 
represent  the  heir,  and  the  latter  must  have  another  repre- 
sentative appointed  for  the  occasion."^  In  Illinois,  proceed- 
ings by  a  guardian  for  the  sale  of  the  lands  of  his  ward  are 
purelv  ill  rem.^'"  In  Florida,  no  service  of  process  on  an 
infant  heir  is  re(iuired.  The  court  must  appoint  a  guardian 
ad  litem.  But  if  no  guardian  ad  litem  is  appointed,  and 
the  general  guardian  is  served  with  process  and  appears  and 
represents  the  minor,  the  proceedings  are  not  void.'^''  In 
Mississippi,  if  the  guardian  of  a  minor  petitions  for  the  sale 
of  the  lands  of  his  ward,  no  notice  need  be  given  the  latter. 
A  summons  must  issue  to  the  co-heirs,  and  also  to  three  of 
the  nearest  relatives  of  the  minor  living  in  the  state.  The 
omission  to  summon  these  relatives  is  fatal  to  the  subse- 
quent proceedings.''' 

Sec.  18.  The  Notice  must  be  Given  in  the  Manner  Pre- 
scribed by  Statute,  or  it  is  Inoperative.^^ — If  it  attempts  a 
description  of  the  bind  sought  to  be  sold,  the  description 
must  be  correct.  A  license  to  sell  one  tract  of  land  founded 
on   a   notice,  designating  a  ditferent  tract,  is  void.^"     If  a 

W-'  Clark  V.  Tliompson,  47  111.  25. 

93Ackley  V.  Dygert,  :53  Barb.  17C;  Havens  v.  Sherman,  42  Barb.  636; 
Schneider  v.  McFarland,  2  X.  Y.  4.59. 

»*  Havens  v.  Sherman,  42  Barb.  C'JG;  Schneider  v.  McFarland,  2  N.  Y: 
459:  To^vn.send  v.  Tallant,  33  Cal.  52;  Kennedy  v.  Gaines,  51  Miss.  625. 

9-^Miilford  V.  Beveridge,  78  111.  455. 

>G  Price  v.  Winter,  15  Fla.  66. 

i"Stain])k'y  v.  King,  51  Miss.  728. 

!«IIerdnian  v.  Short.  IS  111.  59:  Gibson  v.  Koll.  27  111.  190;  Morris  v 
Hogle,  37  III,  150;  Schnell  v.  Chicago,  38  111.  383;  Bree  v.  Bree,  51  111. 
367. 

Trazier  v.  Steenrod.  7  Iowa,  330;  contra  Maurr  v.  Parrish,  26  Oh.  S, 
636. 


VOID    JTDICIAL    SALES.  41 

statute  direct  notice  to  be  given  by  personal  service,  unless 
publication  thereof  is  ordered  by  the  court,  a  publication  is, 
in  the  absence  of  such  order,  inoperative.^''"  If  a  copy  of 
the  petition  and  account  are  required  to  be  served,  the 
service  of  a  summons,  in  their  stead  is  unauthorized  and 
therefore  void.^*^^  If  a  pu])lication  is  directed  to  be  made  in 
a  specified  newspaper  for  four  weeks,  it  can  not  be  made  in 
that  paper  for  three  weeks,  and  ni  another  paper  the  remam- 
ing  week.^""- 

Sec.  19.  The  Notice  must  he  Given  for  the  Time  Pre- 
scribed.— The  publication  of  a  notice  for  a  shorter  time  than 
that  sanctioned  by  law  is  void,  and  can  impart  no  validity  to 
a  sale  or  other  subsequent  proceeding  resting  upon  it.**^^  This 
is  true,  although  the  time  is  shortened  by  an  order  of 
court  in  a  case  where  the  statute  does  not  give  the  court 
that  power.^^  If  a  statute  requires  the  notice  to  be  pub- 
lished for  three  successive  weeks,  the  first  publication  to  be 
six  weeks  before  the  presentation  of  the  petition,  and  the 
notice  as  published  designates  a  day  for  the  presentation, 
less  than  six  weeks  from  the  date  of  the  first  publication, 
the  notice  is  void,  and  can  not  be  made  valid  by  presenting 
the  petition  at  a  later  day  than  that  specified  in  the 
notice.**^  No  notice  need  be  given  to  persons  in  adverse 
possession,  unless  the  statute  directs  \t}^  Giving  notice  to 
a  person  acting  in  one  capacity  seems  not  to  alfcct  him 
when  claiming  in  another  capacity.  Hence,  a  consent  given 
by  a  woman  as  guardian  of  minors  was  held  not  to  preju- 
dice her  claim  as  widow  of  the  decedent 


107 


wilalleck  V.  Moss.  17  C;il.  :W!); 

1"!  Johnson  v.  .Johnson,  iW  111.  223. 

ift^Townsend  v.  'i";illant,  33  Cal.  45. 

if^Townscnd  v.  Tallant,  33  Cal.  45;  Convin  v.  Merritt,  3  Barb.  341; 
Monahan  v.  Vamiykf.  27  111.  155;  Ilavons  v.  .Sherman, -12  Barl).  (;3<i; 
contra,  by  statute,  Woods  v.  .Monroe,  17  .Mirii.  215. 

!•>♦  Havens  v.  Slierman,  42  Karl),  <;3i!. 

lOSGib.son  v.  Koll.  30  III.  17S. 

lOfiYoonians  v.  Brown,  8  Met.  51. 

107  Helms  V.  Love,  41  Ind.  210. 


42  VOID    JUDICIAL    SALES. 

Sec.  -iO.  The  Order  of  Sale  and  Us  Effect  as  an  Adjudi- 
cation.—  ir,  upon  hoariiiii-  of  the  petition,  the  conrt  is  satis- 
tied  that  a  proper  ease  exists,  it  will  enter  tin  order  or 
lieense  for  the  sale  of  the  land.  If  the  conrt  had  jnrisdie- 
tion,  this  order,  nntil  vacated  or  reversed,  is])inding  npon  all 
l>arties  in  interest.  The  pnrchaser  under  it  is  in  no  danger 
of  losing  his  title  l\y  proof  being  made  that  the  order  was 
erroneously  given.  It  can  not  be  collaterally  attacked  for 
error,  fraud  or  irregularity,  if  the  court  had  jurisdiction.*^^ 
The  form  of  the  order  is  ditlerent  in  the  difi'erent  states.  In 
California,  it  "  must  describe  the  lands  to  be  sold  and  the 
terms  of  the  sale."*^  In  Massachusetts,  it  need  not  desig- 
nate which  part  of  the  testator's  lands  are  to  be  sold.**'^  In 
Texas,  an  order  to  sell  all  the  lands  of  a  decedent  was 
thought  to  l)e  i)roper,"*  while  a  license  for  the  sale  of  so 
much  as  would  raise  $1,500  (it  appearing  that  the  decedent 
held  34,000  acres)  was  regarded  as  of  very  questiona1)le 
validity.*^'-  In  Alabama,  a  license  to  sell  must  designate 
the  place  of  sale.**" 

los  Freeman  on  Jndg'ts,  sec.  319a;  Stow  v.  Kimball.  28  111.  03;  Beckett 
V.  Selover,  7  Cal.  215;  Farrington  v.  King,  1  Bradf.  182;  Spragins  v. 
Taylor,  48  Ala.  520;  Jackson  v.  Robinson,  4  Wend.  437;  Boyd  v.  Blank- 
man,  29  Cal.  19;  Myer  v.  McDougal,  47  111.  278;  Carter  v.  Waugh,  42 
Ala.  4r»2:  Morrow  v.  Weed,  4  Iowa,  77;  Atkins  v.  Kinnan,  20  Wend.  241; 
Mulford  V.  .stalzeubauk,  4G  111.  303;  Savage  v.  Benham,  17  Ala.  119; 
Sprigg's  Estate,  20  Cal.  121;  Giddings  v.  Steele,  28  Tex.  750;  Gm-ney's 
Succession,  14  La.  An.  022;  Ilatchor  v.  Clifton,  33  Ala.  301;  Walker  v. 
Morris,  14  Ga.  323;  Barbee  v.  Perkins,  23  La.  An.  .331;  Gordon  v.  Gor- 
•don,  55  N.  II.  399. 

109 C.  C.  P.  of  Cal..  sec.  1554. 

"0  Yeomans  v.  Brown,  8  Met.  51;  Norton  v.  Norton,  5  Cusli.  524. 

Ill  Wells  V.  Polk.  30  Tex.  120. 

"•^Graham  v.  Hawkins.  38  Tex.  628. 

113  Brown  v.  Brown,  41  Ala.  215. 


VOID    JUDICIAL    SALES.  43 


CHAPTER  III. 


SALES  VOID  BECAUSE  OF  ERRORS  OR  03*nSSI0NS  SUBSEQUENT  TO 
THE  JUDGMENT  OR  ORDER  OF  SALE. 

Section  21.  General  Eule  regarding  the  Effect  of  Irregularities. 

Sec.  22.  Failure  to  give  Additional  Bond,  or  to  take  Oath  concerning 

the  Sale, 
Sec.  '2:i.  The  Necessity  of  a  Valid  Execution,  or  Order  of  Sale. 
Sec.  24.  The  Times  when  an  Execution  maj-  not  issue. 
Sec.  2.5.  Writs  of  Execution  must  be  Sufficient  in  Form. 
Sec.  26.  Sales  in  the  Absence  of  Levies. 
Sec.  27.  Sales  without  Inquisition  or  Ai)praisement. 
Sec.  28.  Sales  without  Notice. 
Sec.  29.  Sales,  by  Whom  may  be  Made. 
Sec.  30.  Sales  made  at  an  Improper  Time. 
Sec.  31.  Sales  made  at  an  Improper  Place. 
Sec.  32.  Sales  not  at  Public  Auction. 
Sec.  33.  Sales  to  Person  Disqualified  from  Purchasing. 
Sec.  34.  Sales  to  Raise  more  Money  than  was  Authorized. 
Sec.  35.  Sales  of  Property  not  Liable  to  Sale. 
Sec.  30.  Sales  of  Property  in  Adverse  I'ossession. 
Sec.  37.  Sales  en  masse. 

Sec.  38.  Sales  Infected  by  Fraudulent  Combinations  and  De^^ces. 
SKf.  39.  Purchaser's  Title  not  Affected  by  Secret  Frauds. 

Sec.  21.  General  Rule  Regarding  IrregularitieH. — When 
:i  jiidirincnt  or  order  of  sale  has  been  pronounced,  it  must 
next  he  enforced.  The  jiuthorit}'  whicli  i)ronounces  it  is 
judicial.  That  which  enforces  it  is  chiefl}^  ministerial.  In 
the  exercise  of  tliis  ministerial  authority,  various  errors  of 
commission  oi'  of  omission  are  likely  to  occur.  We  shall 
devote  this  chapter  to  a  brief  and  necessarily  imperfect 
enumeration  of  those  minist(;rial  errors  on  account  of 
which  a  judicial,  execution  or])rol>ate  sale  may  he  adjudged 
void.  With  res])ect  to  judicial  and  execution  sales,  "  the 
ireneral    principle   to   he   deduced    from    the  authoriti(^s    is, 


II  \(>II)    .TUniCIAI.    SALES. 

that  the  title  of  a  piirchasrr,  not  hiiuself  in  liuilt,  can  not 
1)0  impaired  at  hiw  nor  in  0(|nity  hv  showing  any  mere  error 
or  irrognhirit}-  in  the  i)rocx'eilin<:;s.  Errors  and  irrognlari- 
tics  must  bo  corrected  hy  a  direct  proceeding.  11"  not  so 
corrected,  thi-y  can  not  he  made  available  by  way  of  collat- 
eral attack  on  the  purchaser's  title."  "*  Probate  sales,  we 
arc  sorry  to  say,  are  generally  viewed  with  extreme  suspi- 
cion. Though  absolutely  essential  to  the  administration  of 
justice,  and  forming  a  portion  of  almost  every  chain  of 
title,  they  are  too  often  subjected  to  tests  fiir  more  trying 
than  those  applied  to  other  judicial  sales.  Mere  irregulari- 
ties of  proceeding  have,  even  after  the  proceedings  had  been 
formally  approved  by  the  court,  often  resulted  in  the  over- 
throw of  the  purchaser's  title.  In  fact,  in  some  courts,  the 
spirit  manifested  toward  probate  sales  has  been  scarcely 
less  hostile  than  that  which  has  made  tax  sales  the  most 
precarious  of  all  of  the  methods  of  acquiring  title.  In 
other  courts,  however,  probate  sales  are  treated  as  indul- 
gently as  other  judicial  sales. ^^^  It  is  sometimes  said  that  a 
sale  made  under  a  decree  must  pursue  the  directions  therein 
contained  ;  that  a  departure  from  these  directions  renders 
the  sale  void."''  But  to  invoke  this  rule  the  departure  must 
be  of  a  very  material  character ;  and  must,  we  think,  be  a 
departure  which  has  not  been  approved  by  a  decree  of  con- 
firmation entered  in  the  court  wnich  ordered  and  had  super- 
vision of  the  sale."^ 

Sec.  22.  Failure  to  give  Additional  Bond,  or  to  take 
Oath  concerning  the  Sale. — The  granting  of  a  license  to 
sell  real  estate  imposes  a  duty  and  also  a  pecuniary  respon- 
sibility on  the  guardian  or  administrator  in  addition  to  the 
duty  and    responsil)ility  otherwise  attached   to    his    office. 

U4  Freeman  on  Executions,  sec.  339;  Freeman  on  Cotenancy  and  Parti- 
tion, sec.  548;  Winchester  v.  Winchester,  1  Head,  460;  Whitman  v.  Tay- 
lor, CO  Mo.  127;  Hedges  v.  Mace,  72  III.  472;  Cooley  v.  Wilson,  42  la.  428. 

115  Harris  v.  Lester,  80  111.  307. 

116  Williamson  v.  Beny,  8  How.  U.  S.  544;  Jarboe  v.  Colvin,  4  Bush, 
70;  Cofer  v.  Miller,  7  Bush,  545. 

11'  Welch  V.  Louis,  31  111.  44G;  McGavockv.  BeU,  3  Caldw.  512. 


VOID    JUDICIAL    SALES.  45 

This  duty  is  to  use  his  best  efforts  to  make  an  advantageous 
sale  of  the  property.  This  responsibility  is  to  properly 
account  for  and  pay  over  the  proceeds  of  the  sale.  To  in- 
sure a  greater  fidelity  in  performing  this  duty,  some  statutes 
have  prescribed  an  oath  to  be  taken  before  entering  upon 
any  of  the  proceedings  necessary  to  precede  the  sale.  To 
provide  against  any  misappropriation  of  the  proceeds  of  the 
sale,  the  statutes  very  generally  exact  an  additional  bond 
from  the  iruardian,  executor  or  administrator.  The  fact 
that  a  sale  was  made,  or  that  the  time  or  place  thereof  was 
selected  in  advance  of  the  taking  of  this  oath,  has,  in  every 
case  coming  within  our  observation,  been  decided  to  be 
fatal  to  the  purchaser's  title. ^^  The  same  conclusion  has 
been  reached  in  several  cases  where  sales  were  made  without 
the  sfivinsr  of  the  additional  bond."^  In  most  of  the  cases 
where  sales  were  held  void  for  the  failure  to  take  the  oath 
or  to  give  the  bond,  they  had  been  confirmed  b}^  the  court. 
Jn  Indiana  and  Pennsylvania  the  failure  to  file  the  additional 
bond  is  an  irregularity  merely.  After  the  confirmation  and 
the  payment  of  the  money,  this  failure  can  not  avoid  the 
sale.^-'^'  In  New  York,  the  filing  of  the  original  1)ond  on 
the  irrantin<r  of  letters  of  administration,  is  not  a  iurisdic- 
tional  matter. ^-'^  The  issue  of  letters  without  it  is  valid. 
The  failure  of  a  master  in  chancery  to  file  his  bond,  can 
not  be  raised  in  a  collateral  suit  to  avoid  a  sale  made  by 
him  and  confirmed  by  the  court. ^"^^ 

"><Canipboll  v.  Kni<^lit,<.  20  M<>.2iil;  Wilkiii>;()ii  v.  Filby.  24  Wis.  441; 
l':irk«;r  v.  Nicliols,  7  l'i<;k.  Ill ;  Bluckniiui  v.  Baiiiiian,  22  Wis.  Gil ;  "Wil- 
liams V.  Reed,  5  Pick.  480;  Cooper  v.  Sunderland,  3  Iowa.  114;  Thorn- 
ton V.  Mulfjiiinno,  12  Iowa,  549. 

iiM  Wiley  V.  White,  :j  Stew.  &  P.  :?r)5;  Currie  v.  Stewart,  20  Miss.  040; 
Uabcoek  v.  Cobb,  11  Minn.  347;  Kneker  v.  Dyer,  44  Miss.  .'jOI  ;  Perkins 
V.  Fairfield,  11  Mass.  220;  Colica  v.  State,  34  Miss.  17!);  Hamilton  v. 
Lockhart,  41  Miss.  400;  Washinjrton  v.  McCan<,'han.  34  Miss.  304.  For 
jip|)rKatii>n  of  a  similar  rule  in  partition  suits,  see  Freeman  on  Coten- 
uney  and  Partition,  see.  400. 

120  Fostor  V.  Bireh.  14  Ind.  445;  Lockhart  v.  .John,  7  Pa.  St.  137. 

121  Bloom  V.  ]{iM-.li(k,  1  Hill.  130. 

122  Nicholl  V.  Nicholl,  S  Pai.  349. 


4()  VOID    .lUDK  lAL    SAI.ES. 

Sk(\  2.'>.  The  N'ecessifi/fhr  a  Valid  Execution. — Thoiigli 
a  JiulgnuMit  ;it  law  ho  entered,  no  ollicer  has  any  iiutliority 
to  enfbi'oo  it  without  a  writ  of  execution.  A  sale,  when  no 
siu'ii  writ  had  issued  would,  uu(|nestional)l3',  he  void,  in 
rhaueer\  ,  (he  decree  of  sale  may  of  itself  constitute  a  suf- 
ficient authority  for  its  own  execution.^*'  The  usual  custom 
in  chaucerv  is  to  deliver  a  certified  copy  of  the  decree  to 
the  person  charged  hy  the  court  or  by  law  with  the  duty  of 
making  the  sale.  Under  the  practice  for  the  foreclosure  of 
mortgages  in  California,  the  sheriff  is  authorized  to  proce{!d 
on  receiving  an  execution  or  a  certified  copy  of  the  decree. 
If  he  acts  in  the  absence  of  both,  his  acts  are  void.^-^  Some 
of  the  statutes  recpiire  copies  of  orders  of  sale  in  probate 
to  be  delivered  to  the  administrator  or  guardian  as  his  au- 
thority to  sell,  and  others  contain  no  direct  provision  on 
the  subject.  We  have  never  known  of  a  sale  l)eing  ques- 
tioned on  the  ground  that  no  copy  of  the  license  to  sell  had 
been  delivered  to  the  administrator.  An  execution  is  in- 
valid and  can  not  support  a  sale,  unless  it  is  issued  out  of  a 
court,^^  and  by  an  officer  ^^^  competent  to  issue  it.  It  must 
also  be  on  a  judgment  capable  of  enforcenjcnt  by  execution. 
The  judgment  must  not  be  void  nor  satisfied. ^^^  The  de- 
fendant in  execution  must  also  be  a  person  or  corporation 
against  which  an  execution  may  issue. ^^**  The  execution 
must  not  be  forged,  either  wholly  nor  in  any  material 
part.i2« 

Sec.  24.  TJie  Times  when  an  Execution  may  not  Issue. — 
By  some  statutes  a  plaintiti"'s  right  to  execution  does  not 
exist  immediately  after  the  entry  of  the  judgment,  but  re- 
mains in  abeyance  a  specified  period  of  time.  The  issue  of 
execution    before   the  expiration   of  this  time  is,  in   most 

i«  Karnes  v.  Harper,  48  HI.  527. 

'•-'•«  Ileynian  v.  Babcook,  30  Cal.  307. 

'■^''  Freeman  on  Executions,  sec.  15. 

i--*  lb.,  sec.  23. 

1*7  lb.,  sees.  19,  20. 

>■«  lb.,  sec.  22. 

i-'J  lb.,  sees.  23,  47. 


VOID    .JUDICIAL    SALES.  47 

States,  a  mere  irregularity,  not  of  suthcient  gra\'ity  to  ren- 
der the  sale  void.^'*^  The  same  rule  is  usually  applied  to 
writs  issued  contrary  to  agreement  or  pending  a  stay  of  exe- 
cution. They  will  be  vacated  on  motion.  But  if  the  de- 
fendant takes  no  steps  to  obtain  their  vacation,  or  to  set 
aside  sales  made  thereunder,  the  latter  will  be  treated  as 
valid. ^^  This  remark  is  equally  true  of  writs  issued  and 
sales  made  in  disobedience  of  injunctions.^-^-  At  common 
law,  execution  could  not  regularly  issue  after  a  year  and  a 
day  subsequent  to  the  entry  of  judgment,  without  a  revivor 
bv  scire  facias.  A  writ  issued  in  violation  of  this  rule  is 
not  void.^*^  So,  at  common  law,  an  execution  could  not 
regularly  issue  without  revivor  of  the  judgment  by  scire 
facias,  after  the  death  of  a  sole  plaintiff  or  of  a  sole  de- 
fendant. The  issue  of  a  writ  in  violation  of  this  rule  is  a 
more  serious  matter  than  its  issue  on  a  dormant  judgment. 
If  an  execution  is  issued  and  tested  after  the  death  of  a  sole 
plaintiff,  the  authorities  are  very  evenly  divided  upon  the 
question  whether  it  is  void  or  irregular  only.^**  But  if  it 
issues  and  bears  teste  after  the  death  of  a  sole  defendant ,  the 
authorities  almost,  but  not  (juite  unanimously,  adjudge  it 
void.^*^  But  the  death  of  one  of  several  plaintifls  or  defend- 
ants neither  suspends  nor  destroys  the  right  to  issue  exe- 
cution.'•'*' 

Sec.  25.  Writs  of  Eo:ecution  must  be  Sufficient  in 
Form. — The  necessity  for  a  writ  of  execution  can  not  l)e 
answered  by  a  writ,  called  by  that  name,  but  substantially 
defective  in  form.  It  mu.st  at  lea.st  purport  to  proceed  from 
some  competent  authority  ;  must  show  what  judgment  it  Is 

•■'<' Freeman  on  P^xccutions,  sec.  2.').  Unl  in  Massaehu.scttsapieinuUiri; 
wiit  i.'^  void.     I'tiininian  v.  Cole,  8  Met.  4!)G. 

131  Krecniaii  on  Executions,  sees.  33,  2(J. 

l32Kikonian  v.  Kolin,  IS  Ga.  183:  Ba;;ley  v.  Ward.  M  (ui.  121. 

I'W  Fn-enian  on  Executions,  sees.  2!),  '.W. 

^^  Freeman  on  Executions,  sec.  35. 

I'WIb.,  sec.  35. 

y'*>\h..  sec.  30.  With  respect  to  tlie  eflVrt  of  tin'  death  of  a  |i:irty  after 
the  i-sue  of  execution,  sec  ih..  >*■<•.  37. 


48  VOID  JuniriAL  sales. 

(li'siiriuHl  to  iMirorco,  aiul  must  direct  the  olHcer  to  execute 
or  s;itist\  llu'  Judi^ineiit.^'''  But  there  are  various  formal 
matters  usually  embodied  iu  Avrits  of  executiou,  aud  in 
respect  of  which  an  error  or  omission  is  not  necessarily 
latal.  Thus,  a  mistake  or  omission  in  designating  the 
retnrn  dav,''"^  or  in  the  attesting  clause,^*-^  are  not  of  suffi- 
cient consequence  to  defeat  an  execution  sale.  In  some 
courts  an  execution,  without  a  seal  (where  one  is  required) 
is  void  :  in  others  it  is  irregular  merely."^'  The  most  fre- 
quent mistakes  in  the  issue  of  writs  are  made  in  attempting 
to  describe  Judgments.  The  name  of  the  plaintitf  or  of  the 
defendant  may  be  incorrectly  stated  ;  or  the  amount  of  the 
jndument  may  vary  from  the  sum  for  which  execution  issues. 
These  mistakes  and  variances  are  amendable.  If  no  amend- 
ment is  made,  and  no  objection  to  the  form  of  th(^  writ  is 
interposed  bv  a  motion  to  (juash  or  vacate  it,  it  must  be 
treated  as  valid,  unless  the  variance  is  so  great  that  it  ap- 
pears not  to  be  issnqd  upon 'the  judgment  which  is  produced 
in  its  support. ^^^ 

Sec.  26.  Sales  in  the  Absence  of  Levies. — AVhen  a  judi- 
cial sale  is  made  by  virtue  of  an  order  or  license  of  sale,  no 
levy  is  necessary.  The  same  rule  holds  good  with  respect 
to  execution  sales  of  real  estate,  where  th(>  jndgment  itself 
is  a  lien  on  the  real  property  of  the  defendant.  Personal 
property  must  be  levied  upon,  or  in  some  way  subjected  to 
the  control  of  the  officer,  before  a  valid  sale  can  be  made 
under  execution.  As  between  the  parties,  the  defendant  can 
waive  a  levy.  With  respect  to  real  estate,  upon  which  a 
lew  has  neither  been  made  nor  waived,  the  authorities  are 
very  evenly  divided  as  to  the  validitv  of  an  execution  sale, 
some  claiming  that  it  is  irregular  merely,  others  that  it  is 
void. "2 

i:j7  Freeman  on  Execntions,  sees.  39-41. 

i:«Ib.,  sec.  44. 

i'»Ib.,  sec.  4.5. 

i^'Jlb.,  sec.  4C. 

i«Ib.,  sees.  42  and  43. 

J-»-' Freeman  on  Executions,  sec.  274. 


VOID     .JUDICIAL    SALES.  49 

Sec.  27.  Sales  unthout  Inquisition  or  Appraisement. — 
Some  statutes  require  an  inquisition  or  appraisement  of  real 
estate  to  precede  its  sale  under  execution.  Sales  made  in 
violation  of  this  statutory  provision  are  usually,  but  not 
universally  held  void.^*'  In  Missouri  and  Louisiana,  a  sim- 
ilar provision  applies  to  probate  sales  ;  and  a  sale  without 
an  appraisement  is  thought  to  be  void.^^ 

Sec.  28.  Sales  Void  for  Want  of  Notice  of  Sale. — Some 
notice  of  the  time  and  place  of  sale,  and  of  the  property  to 
l)e  sold,  is  obviously  essential  to  the  realization  of  its  value. 
This  notice  is  commonly  required  to  be  given  by  the  statutes 
regulating  judicial,  execution  and  probate  sales.  Whether 
a  compliance  with  this  requirement  is  a  pre-requisite  to  the 
power  to  sell,  is  uncertain.  Undoubtedly  a  sale,  without 
first  gi^'ing  the  proper  notice,  would  not  be  confirmed  if 
the  defect  were  known  to  the  court.  It  would  be  vacated 
on  motion,  while  the  court  has  power  to  annul  it  by  that 
kind  of  a  proceeding.^^'  Concerning  execution  sales  "a 
v(;rv  decided  preponderance  of  the  authorities  maintains 
this  proposition :  That  the  statutes  requiring  notice  of  the 
sale  to  be  given  are  directory  merely,  and  that  the  failure 
to  give  such  notice  can  not  avoid  the  sale  against  any  pur- 
chaser not  himself  in  fault."  ""  With  respect  to  executors', 
administrators*  and  guardians'  sales  the  authorities  are  more 
evenly  divided.  We  think,  however,  that  they  slightly  pre- 
ponderate toward  the  view  that  the  giving  of  notice  for  the 
lime,  and  substantially  in  the  manner  directed  by  statute,  is 
indispensable  to  a  valid  sale.""     The  minority,  on  the  other 

1*'  Freeman  on  Execnticms,  sees.  284,  285. 

i«.Strou.Hc  V.  Drennan.  41  Mo.  289;  Curley's  Succession,  18  La.  An. 
728. 

H-i  Glenn  v.  Woottcn,  '.\  Md.  Ch.  r)14;    Reynolds  v.  Wilson,  L")  111.  :W4. 

11'-  Freeman  on  Exei-ntions.  sec.  280;  Contra,  lluglics  v.  Watt,  2(1  Ark. 
22S;  L;ifrerty  v.  Conn,  '.5  Sneed,221.  See  Steward  v.  Pettigrcw,  28  Ark. 
:{72. 

H' 'riiomas  V.  T.f  liaron.  s  Met.  :'.<;:?:  Cui-ley's  Succession.  IS  La.  An. 
72S;  Blodgett  V.  Hitt,  2'.j  Wi-.  Id!);  Mount. .iir  v.  I'urdy,  11  Minn.  ;$84; 
Oernon  v.  Bestick.  ir>La.  An.  c,!i7. 

4 


T)!)  VOID    JUDICIAL    SALES. 

liaiul,  insist  lli:it  the  existence  of  the  notice  and  its  sufiici- 
ent-y  nvc  U>gitini:ite  subjects  of  inquiry  when  the  sale  is  re- 
ported for  contirmation  ;  but  not  afterwards. ^^ 

Skc.  29.  By  whom  the  Sale  may  be  Made. — When  a  sale 
is  to  be  made  under  a  decree  in  chancery,  the  court  nuiy 
ap})oint  some  one  as  its  agent  or  commissioner  and  invest 
him  with  power  to  make  the  sale."*^  A  sale  under  execu- 
tion must  be  made  by  a  sheriff  or  constable,  unless  he  is 
disqualified  to  act.  So,  an  administrator's  sale  must  be 
made  by  or  under  the  direction  of  the  administrator.  The 
court  can  not  appoint  some  other  person  to  make  the  sale.^^ 
Nor  can  an  executor  appoint  some  person  in  his  stead  to 
exercise  a  power  of  sale  contained  in  the  will  .'^^  An  admin- 
istrator's or  commissioner's  sale,  at  which  he  was  not 
present,  and  conducted  by  his  agent,  is  voidable,  if  not 
void.i^- 

Sec.  30.  At  what  Time  a  Sale  may  he  Made. — Of 
course  no  judicial  or  execution  sale  ought  to  take  place  at 
any  other  time  than  that  fixed  by  the  notice  of  sale  ;  and 
the  notice  of  sale  ought  not  to  fix  upon  any  time  prohibited 
by  law.  A  sale  made  in  violation  of  this  rule  will,  no 
doubt,  be  vacated  or  refused  confirmation  if  the  irregular- 
ity is  suggested  to  the  court  at  the  proper  time.  It  is  not, 
however,  void  in  most  states. ^^  In  Texas,  a  sale  made  at 
a  time  different  from  that  allowed  by  law  can  not  be  collat- 
erally attacked  after  its  confirmation.^^  But  if  the  irregu- 
larity be  not  thus  cured  by  confirmation,  the  sale  is  void.^^ 

148  Morrow  v.  Weed,  4  Iowa,  77;  Little  v.  Sinnett,  7  Iowa,  324;  Minor 
V.  Selectmen,  4  S.  &  M.  602;  Bland  v.  Muncaster,  24  Miss.  62;  Hanks  v. 
Neal,  44  Miss.  212;  McNair  v.  Hunt,  5  Mo.  301 ;  Cooley  v.  Wilson,  42  la. 
428;  Hudgens  v.  Jackson.  51  Ala.  514. 

i<9  Freeman  on  Executions,  sec.  291. 

150  Crouch  V.  Eveleth,  12  Mass.  503;  Swan  v.  Wheeler,  4  Day,  137; 
Jarv'is  v.  Russick,  12  Mo.  03;  Rose  v.  Newman,  26  Tex.  131. 

151  Pearson  v.  Jamison,  1  McLean,  197. 

152  Chambers  v.  Jones,  72  111.  275;  Sebastian  v.  Johnson,  72  111.  282. 

153  Freeman  on  Executions,  sec.  287. 

154  Brown  v.  Christie.  27  Tex.  75. 

155 Peters  v.  Caton,  6  Tex.  55G;  Tippett  v.  Mize,  30  Tex.  365. 


VOID    JUDICIAL    SALES.  51 

It  is  always  essential  that  a  sale  be  made  under  a  valid,  sub- 
sisting authority.  A  sale  made  when  such  authority  had 
been  destroyed  by  lapse  of  time  would  everywhere  be 
treated  as  void.  If  the  statute  under  which  a  license  to  sell 
is  granted  limits  the  operation  of  the  license  within  a  desig- 
nated period,  a  sale  outside  of  the  prescribed  limit  is  a  nul- 
lity .^^  In  some  instances  licenses  to  sell  have  been  held  to 
have  lost  their  vitality  through  lapse  of  time,  although  the 
statute  had  not  directly  prescribed  any  such  limit  to  their 
power. ^^^  If  the  act  under  which  an  order  of  sale  has  been 
granted  is  repealed,  or  the  court  in  which  it  was  entered  is 
abolished,  its  legal  vitality  is  destroyed  and  can  not  support 
a  subsequent  sale.^^ 

Sec.  31.  Sales  made  at  an  Improper  Place  are  sometimes 
held  to  be  iiTegular  merely,  but  more  frequently  are  ad- 
judged void.^^  Execution  sales  of  real  estate  must  be 
made  in  the  county  where  it  is  situate,  and  by  an  officer 
of  such  county  -^^  but  a  commissioner  in  chancery  may  be 
authorized  to  sell  real  estate  beyond  the  limits  of  the 
county  in  which  he  was  appointed. ^^^  Personal  property 
capable  of  being  examined  and  inspected  must,  if  possible, 
be  at  or  near  the  place  of  sale.  Bidders  must  be  permitted 
to  view  it,  and,  by  the  exercise  of  their  various  senses,  to 
judfe  of  its  character  and  value.  Any  other  rule  would 
tend  to  a  wanton  sacrifice  of  the  propert}'.  Hence,  a  sale 
of  personal  property,  at  a  place  where  it  can  not  be  exam- 
ined or  seen,  is  a  nullity .^^ 

I'^cMacy  V.  Raymond,  !J  Pick.  2S.j;  Man-  v.  Bootliby,  1!)  Me.  150;  Ma- 
son V.  Ham,  :50  Me.  573;  Williamson  v.  Williamson.  52  Miss.  725. 

iM  Wellman  v.  Lawrence,  15  Mass.  32G.  In  this  case  the  sale  was  made 
fifteen  years  stibscMjiient  to  the  license. 

'•''■'^Mel.iuif^liliM  V.  Janney,  G  Gratt.  GO'J;  I'eriy  v.  Clavkson,  IG  Oh.  571; 
Bank  v.  Dudley,  2  Pet.  493. 

1,13  Freeman  on  Executions,  sec.  289, 

160  1b.,  sec.  289. 

ici  Bank  v.  'I'rapier,  2  Hill  Ch.  25. 

ie2p>eeman  on  Executions,  sec.  290;  Collins  v.  Montfjomery,  2  N.  & 
McC.  392;  contra,  where  valid  levy  has  been  made,  Eads  v.  Stephens,  63 
Mo.  90. 


.rj  \«)II)    .IIDICIAL    SALKS. 

Sk(\  ',\'2.  ASa/es  not  at  Public  Auction. — Execution  sales 
iiui>t  !)(>  matlo  at  public  aiictioii.  Probate  and  other  judicial 
sales  are  f^encrally  controlled,  in  this  respect,  by  the  direc- 
tious  contained  in  the  license  or  decree.  Whenever  by  law,  or 
by  the  ilirectiou  in  an  order  of  sale,  property  is  required  to 
be  sold  at  public  auction,  a  private  sale  thereof  is  invalid. ^'^' 

Sec.  33.  Sales  to  Persons  Disqualified  from  Pur- 
c/iasiiu/. — The  i)olicv  of  the  law  is  not  to  permit  the  same 
person  to  represent  conflicting  interests.  Hence,  trustees, 
sheriffs,  constables,  administrators,  executors,  guardians, 
and  all  persons  vested  with  authority  to  sell  the  property  of 
others  are  themselves  forbidden  from  bccominjj  interested 
ill  the  sale.  A  sale  made  in  violation  of  this  rule  will  al- 
ways be  vacated  upon  a  motion  made  in  due  time.'"*  But  the 
only  question  strictly  within  the  scope  of  our  present  in- 
(juiry  is  the  effect  of  such  a  sale  when  no  action  is  taken  for 
the  purpose  of  setting  it  aside.  If  the  sale  and  conveyance 
be  made  directh'  to  the  administrator,  sheriff",  or  other  offi- 
cer, it  may  well  be  declared  a  nullity,  on  the  ground  that 
one  person  can  not  unite  in  himself  the  capacity  of  vendor 
and  vendee — can  not,  by  the  same  act,  transmit  and  re- 
ceive.^*^'^  But  usually  laws  are  sought  to  be  evaded  rather 
than  openl}^  violated.  Hence,  an  administrator  or  sheriff' 
desirous  of  l)ecoming  the  owner  of  property  about  to  be 
sold  l)y  himself,  will  seek  the  aid  of  a  friend,  in  whose 
name  the  purchase  can  be  made  and  the  title  held,  for  such 
time  as  will  conceal  the  true  nature  of  the  transaction.  In 
a  case  of  this  kind  the  officer  can  not  be  permitted  to  profit 
bv  the  transaction  at  the  exijcnse  and  aijainst  the  will  of  the 

i«  Hutchinson  v.  Oassidy.  40  Mo.  431;  Ellet  v.  Paxson,  2  W.  &  S.418; 
Fambro  V.  Gautt,  12  Ala.  2!JS;  Wier  v.  Davis,  4  Ala.  442;  Mo  Arthur  v. 
Carrie,  32  Ala.  7"):  Gaines  v.  De  La  Croix,  0  Wall.  71!);  Neal  v.  Patter- 
son, 40  Ga.  3(53;  A.shurst  v.  Ashurst,  13  Ala.  781;  Worteu  v.  Howard, 
2  S.  &  31.  .">27;  contra.  Wynns  v.  Alexander,  2  D.  «fc  B.  Eq.  58;  Tynell  v. 
Morris.  1  D.  &  B.  Eq.  :>:>'.>. 

1'''*  Freeman  on  Executioii>.  sec.  292. 

I'^IIaniblin  v.  Warnecke,  31  Tex.  !)4 :  Boyd  v.  Blanknian,  29  Cal.  34; 
Stapp  V.  Toler.  3  Bibb,  4.J0;  I)wi,i;ht  v.  Blackniar,  2  Mich.  330. 


VOID    JUDICIAL    SALES.  53 


parties  interested.  On  learning  the  true  state  of  the  facts, 
they  may  have  the  sale  annulled  ;  or  they  may  affirm  it  and 
permit  it  to  stand.  If  they  seek  to  annul  it,  they  are  en- 
titled to  succeed,  irrespective  of  the  fairness  or  unfjiirness  of 
the  sale,  or  the  motives  which  prompted  the  administrator 
or  other  officer  or  trustee. ^*^  Bat  the  sale  is  not  void  in  the 
extreme  sense.  It  can  not  be  attacked  and  overthrown  by 
third  persons.  Neither  can  the  heirs  or  other  parties  in  m- 
terest  treat  it  as  unqualifiedly  void.  They  may  confirm  it 
either  directly  or  by  their  non-action  continued  for  a  long 
period  of  time  after  having  notice  of  the  true  nature  of  the 
transaction.  Such,  at  least,  is  the  opinion  of  the  majority 
of  the  authorities.^*'^  In  some  of  the  cases,  however,  such 
a  sale  appears  to  have  been  held  void.^^^  In  New  York  it  is 
made  void  by  statute. ^''^  Sales  made  by  sheriffs  and  consta- 
bles, and  in  which  they  are  interested,  are,  under  the  statutes 
in  force  in  many  of  the  States,  held  void.^™ 

Sec.  34.  Sales  to  Raise  too  Great  a  Sum. — In  Kentucky, 
an  execution  or  chancery  sale  to  raise  a  sum  greater  than 
that  authorized  by  the  judgment  or  decree,  is  void.  A  like 
rule  seems  to  apply  to  probate  sales  in  Massachusetts.'^  In 
the  last  named  state,  a  sale  for  $953.30,  under  a  license 
authorizing  the  sale  of  so  much  lands  as  would  pay  $640, 
was  held  to  be  a  nuUitv.^'^ 

ifiCRiddle  v.  Roll,  24  Oh.  81.572;  Anderson  v.  Green,  46  Geo.  3G1 ;  Pot- 
ter V.  Smith,  30  Ind.  231 ;  Smith  v.  Drake,  23  N.J.  Eq.  302;  Frouebergcr 
V.  Lewis,  70  X.  C.  45G;  Ryden  v.  Jones,  1  Hawks,  497;  Miles  v.  Wheeler, 
43  111.  123;  Ives  v.  Ashley,  97  Mass.  198;  Bailey  v.  Robinson,  1  Gratt.  4; 
Edmunds  v.  Crenshaw.  1  MtCord's  Ch.  2.52;  Glass  v.  Greathouse,  20  Oh. 
.503;  Guerrero  v.  Ballcrino,  48  Cal.  118, 

1G7  Litchfield  V.  Cudworth,  15  Pick.  23;  ^Sluim  v.  Surges.  70  111.  (;0-I ; 
I'.oyd  V.  Blankman,  29  Cal.  19;  Hicks  v.  Weems,  14  La.  An.  (i29;  Mus- 
selinan  v.  E.shclniaii.  10  Pa.  S.  391.  Sec  also  the  autlioritics  in  tlie  pre- 
ceding citation. 

i(wilaml»lin  v.  Warnecke,  31  Tex.  94. 

inyxerwilliger  v.  Brown.  44  N.  Y.  237. 

I'f* Freeman  on  Executions,  sec.  292. 

171  Patterson  v.  Carncal.  3  A.  K.  M:irsli.  (ilS;  Blakey  v.  ,\bert,  1  Dana, 
185;  Hastings  V.Johnson.  1  Nov.  G13. 

I'Mvitchficid  V.  Cudworth.  15  Pick.  23;  Lockwond  v.  Sturtcvant,  fi 
Conn.  373. 


54  VOID    JUDICIAL    SALES. 

Skc.  3.').  >S((les  of  Property  not  Subject  to  Sale. — It  is 
always  indi.spcnsjil)K>  that  the  property  sold  should  be  sub- 
ject to  the  lioeiise,  decree  or  writ  under  which  the  sale  is 
nuidc.  It"  :ui  execution  issues,  it  can  reach  the  property  of 
the  defendant  only.  If  the  property  of  a  stranger  is  seized 
and  sold,  his  title  is  not  divested  thereby. ^^'^  If  property  of 
the  defendant  is  sold,  it  must  be  subject  to  the  execution 
levied  upon  it,  or  the  proceeding  will  be  entirely  inopera- 
tive upon  his  title. "^  Hence,  an  execution  sale  of  a  home- 
stead is  usually  void  ;  ^'^■'  and  the  same  rule  is  often  applied 
to  other  exempt  property.^""  If,  under  the  statute  of  a  state, 
the  homestead  of  a  decedent  does  not  come  within  the  con- 
trol of  its  probate  courts,  an  administrator's  sale  thereof, 
though  ordered  and  confirmed  by  the  court,  is  an  idle  yxro- 
ceeding.^"  If,  while  acting  under  a  valid  decree  or  license, 
an  administrator  sells  lands  not  embraced  therein,  his  act  is, 
as  to  such  lands,  obviously  w^ithout  any  legal  support. ^^^ 

Sec.  36.  Sales  of  Property  in  Adverse  Possession. — The 
policy  of  the  common  law  prohibited  the  transfers  of  causes 
of  action.  Lands  of  which  the  owner  was  disseized  could 
not  be  conveyed  during  such  disseizin.  The  conveyance  of 
such  lands  was,  by  statute  (32  Henry  8,  c.  9),  a  crime  for 
which,  on  conviction,  both  vendor  and  vendee  were  subject 
to  the  forfeiture  of  the  value  of  the  lands  sought  to  be  con- 
veyed. Execution  and  judicial  sales  have  never  been  within 
this  inhibition  against  voluntary  transfers.  On  the  contrary, 
they  are  supported,  whether  he  whose  title  is  involuntarily 
transferred  be  seized  or  disseized. ^^^ 

Sec,  37.    Sales    en    Masse. — The  duty  of  an   officer  in 

173  Freeman  on  Executions,  sec.  335. 

17*  Freeman  on  Executions,  sec.  109. 

i'5  lb.,  sec.  230. 

176  1b.,  sec.  215. 

i77Yarborov.  Brewster,  38  Tex.  397;  Hamblin  v.  Warnecke,  31  Tex. 
93;  Howe  v.  McfJivern,  2.")  Wis.  525. 

1"^  Ludlow  V.  Parte,  4  Oliio,  5. 

i^!'  Drinlcwater  v.  Drinlvwater,  4  Mass.  354;  Willard  v.  Nason,  5  Mass. 
241 ;  Iligli  V.  Xelms,  14  Ala.  350;  Coo]<  v.  Travis,  20  N.  Y.  400;  McGiU 
V.  Doe.  9  Ind.  300;  Stevens  v.  Hauser.  39  N.  Y.  302. 


VOID    JUDICIAL    SAX,ES.  55 

making  a  sale  is  to  offer  the  property  in  such  parcels  as  will 
prove  most  inviting  to  the  bidders,  and  realize  the  greatest 
sums,  for  the  heirs  and  other  interested  persons.  Hence,  if 
several  parcels  of  real  estate  be  embraced  in  one  license,  the 
administrator  is  to  offer  them  for  sale,  not  in  one  lump,  but 
"  in  such  parcels  as  shall  be  best  calculated  to  secure  the 
greatest  aggregate  amount. "^^  Where  several  distinct  par- 
cels of  land  are  to  be  sold,  each  ought  to  be  offered  and  sold 
separately,  unless  it  is  clear  that  the  union  of  two  or  more 
will  augment  rather  than  decrease  the  aggregate  proceeds  of 
the  sale.  In  Indiana,  Michigan,  Tennessee  and  Pennsyl- 
vania, a  lumping  execution  sale  of  two  or  more  separate 
parcels  of  land  is  void  ;^^^  but  in  nearly,  if  not  quite  all  the 
other  states,  such  a  sale, though  voidable,  is  not  a  nullity. ^^^ 
In  Michigan,  a  probate  sale  is  not  void  because  two  or  more 
parcels  are  sold  together,^® 

Sec.  38,  Sales  infected  by  Fraudulent  Combinations 
and  Devices. — Judicial  and  execution  sales  are  usually  im- 
perative. Those  who  own  the  property  are  compelled  to 
sell  for  whatever  is  offered.  To  avoid  the  sacrifice  likely  to 
ensue,  notices  of  sale  are  required  to  be  given,  the  property 
is  struck  off  to  the  highest  bidder,  and  competition  among 
the  persons  intending  to  bid  is  sought  to  l)e  produced.  But 
the  bidders,  on  their  part,  may  enter  into  combinations  and 
devices,  either  with  one  another  or  with  the  officer  conduct- 
ing the  sale,  by  means  of  which  competition  is  lessened  or 
altogether  avoided.  Every  scheme  looking  to  this  result  is 
highly  immoral,  and  will,  if  possil)le,  be  thwarted  by  the 
courts.  The  sale  may  be  vacated,  either  by  motion  or  by  a  bill 
in  equity.  "  Whether  a  purchase  obtained  by  the  prevention 
of  conq)etitioii  can,  by  the  guilty  party,  be  asserted  at  law, 
is  a  (jucstion  u))on  which  the  courts  are  by  no  means  agreed. 
h\  several  of  the  states  such  a  purchase,  and  the  deed  made 

i»>DeluplaiiM'  v.  I.awrence,  3  N.  Y.  304. 

181  FTftf'iiiiin  oil  I^xcciilioris.  ho<\  200. 

ift'Ib.,  sec.  J'.tij;  IJoiildiii  v.  Ewait,  W  M<».  .'530. 

i**0.sman  v.  Traphagen,  23  Mich.  80. 


56  voin  .irniriAT,  sales. 

in  purj;ii;iiuo  tlu'icol',  -aw  rt'gartlccl  as  a  valid  transferor  the 
legal  title.  Tiie  deiendaiit  in  execution,  wishing  to  prevent 
the  assertion  of  this  lillo,  must  claim  the  assistance  of  a 
court  of  e(|uity.  But  the  majority  of  the  decisions  sustains 
aji  adverse  theory — one  under  which  the  title  of  the  fraudu- 
lent purchaser  is,  Avhile  in  his  hands,  regarded  as  void,  and 
therefore  as  capable  of  being  resisted  not  less  successfully 
at  law  than  in  equity.' '^^ 

Sec.  3}I.  Purchaser's  Title  not  Affected  by  Secret  Frauds. 
—  It  is  a  general  rule  that  one  who  purchases  at  a  ju- 
dicial, probate  or  execution  sale,  can  not  be  deprived  of 
his  title  by  secret  frauds  or  irregularities,  in  which  he  did 
not  participate  and  of  which  he  had  no  notice.^®  Hence,  an 
administrator's  sale  can  not  be  avoided  by  showing  that  he 
procured  his  license  to  sell  by  fraud  and  misrepresentation, 
in  the  absence  of  any  necessity,  and  with  the  design  of 
sacriticing  the  interests  entrusted  to  his  care.^^  Nor  can  an 
innocent  purchaser  be  injuriously  ati'ected  by  proof  of  any 
mistake,  error  or  fraud  of  an  administrator  or  guardian  in 
conducting  a  sale.^^'*^  Although  the  original  purchaser  has 
himself  been  guilty  of  fraudulent  devices,  or  has  had  no- 
tice of  such  devices  practiced  by  others,  he  can  transmit  a 
valid,  unimpeachable  title  to  a  vendee  for  value,  in  good 
faith,  and  without  notice.  Therefore,  if  a  sale  be  nominally 
made  to  a  stranger,  but  really  for  the  benefit  of  the  admin- 
istrator, and  this  stranger  convey  to  another,  for  value,  who 
has  no  notice  that  the  apparent  are  not  the  true  facts,  the 
title  can  not,  in  the  hands  of  the  latter  or  his  vendees,  be 
rendered  void  or  voidable  by  proof  of  the  real  facts. ^*^     The 

IM  Freeman  on  Executions,  sec.  297;  Underwood  v.  McVeigh,  23 
Gratt.  409. 

185  Freeman  on  Executions,  sees.  342,  343. 

i86Lainothe  v.  Lippott,  40  Mo.  142;  Myev  v.  McDougal,  47  El.  278; 
Moore  v.  Neil,  39  111.  200;  McCown  v.  Foster,  33  Tex.  241. 

187  Gwinn  v.  Williams,  30  Ind.  374;  Staples  v.  Staples,  24  Gratt.  225; 
Jones  V.  Clark,  2.5  Gratt.  042;  Patterson  v.  Lemon,  50  Ga.  231. 

188  Blood  V.  Haynian,  13  Met.  231;  Staples  v.  Staples,  24  Gratt.  225; 
Robbins  v.  Bates,  4  Cusli.  104;  Gwinn  v.  Williams,  30  Ind.  374. 


I 


VOID    JUDICIAL    SALE8.  57 

purchaser  at  a  guardian's  or  administrator's  sale  is  not 
charged  with  the  duty  of  seeing  to  the  proper  application  of 
the  proceeds  of  the  sale.  The  validity  of  his  title  is  not 
destroved  by  the  embezzlement  of  the  money  which  he  has 
paid  to  the  person  authorized  by  law  to  receive  it.^^ 


CHAPTER  IV. 


THE  CONFIRMATION  AND  DEED. 

Section  40.  Notice  must  be  Given  before  Conlirming  Sales. 

Sec.  41.  Confii-raation  is  Essential  to  Title. 

Sec.  42.  What  Irregularities  are  Cured  bj'  Confirmation. 

Sec  43.  Deed  is  Essential  to  Transfer  of  Legal  Title. 

Sec.  44.  Deed,  when  and  by  Whom,  maybe  Made. 

Sec  4.5.  Deed  when  Void,  because  not  in  Proper  Form. 

Sec.  40.  Notice  before  Confirmation. — Under  the  statutes 
in  force  in  most  of  the  states,  execution  sales  are  not  re- 
quired to  be  approved  by  the  court  out  of  which  the  writ 
issued.  Chancery  and  prol)ate  sales,  on  the  other  hand,  are 
usually  made  subject  to  the  approval  of  the  court.  In  or- 
der to  obtain  this  approval,  some  of  the  statutes  require  a 
verified  return  of  sales  to  be  filed,  and  that  this  return  shall 
be  brought  on  for  hearing  only  after  notice  has  been  given 
in  a  mode  })rescribed  by  statute.  Where  this  is  the  case, 
the  question  arises  whether  a  confirmation  entered  without 
giving  any  such  notice  is  valid.  The  authorities  on  the  sub- 
ject are  too  meagi-e  to  justify  any  positive  answer  ;  but  their 
tendency  is  toAvard  the  conclusion  that  the  confirmation  is  a 
nullity,  or,  at  least,  that  the  confirmation  does  not  preclude 
the  parties  from  urging,  in  a  collateral  attack,  any  objections 
existing  against  the  sale.^'^ 

189  Giles  V.  Pratt.  1  Hill  S.  C.  230;  Mullonl  v.  Stalzenback,  K!  111.  303; 
Mnskiiigutii  Hank  v.  Carpenter,  7  Oh.,  jiart  1.  j).  21. 

190  Speck  V.  Wolilifii.  22  Mo.  310;  I'crkins  v.  (;ri(l]r'y.  50  Cal.  !I7. 


58  VOID    JUDICIAL    SALES. 

Skc.  n .  Conflvmation  i.-i  Essential  to  Title. — When  the 
l:i\v  uiulcr  which  a  sale  is  made  requires  it  to  l)e  reported  to 
C(turt  for  approval  or  disapproval,  such  approval  is  essential 
to  the  consuniniation  of  the  sale.  Without  it  there  is  no 
autiiorily  for  niakinji;  any  conveyance  to  the  purchascr,^"^ 
and  a  conveyance  without  authority  is  obviousl}''  void.^*^ 
This  rule  is  equally  applical)le  to  executions,  chancery  and 
probate  sales. ^^  But  instances  may  occur  in  which  the  rat- 
ification or  acquiescence  of  the  parties  may  either  estop 
them  from  invoking  this  rule,  or  give  rise  to  the  presump- 
tion that  an  order  of  confirmation  was  made,  of  which  the 
evidence  has  been  lost.^^^  So,  the  approval  of  the  couit  has 
sometimes  been  inferred  from  its  subsequent  acts  and  pro- 
ceedings, though  no  order  of  confirmation  could  be  found  in 
its  records. ^^^ 

Sec.  42.  What  Irregularities  are  Cured  by  Confirm- 
ation.— In  Kansas,  the  confirmation  by  the  court  of  an  exe- 
ution  sale  "is  an  adjudication  merely  that  the  proceedings  of 
the  officer,  as  they  appear  of  record,  are  regular,  and  a 
direction  to  the  sheriff"  to  complete  the  sale."^'^*'  With 
respect  to  chancery  and  probate  sales,  we  apprehend  that 
their  confirmation  has  an  efifect  beyond  that  conceded  in 
Kansas  to  the  confirmation  of  execution  sales.      The  object 

191  McBain  v.  McBain,  15  Oh.  St.  337;  Curtis  v.  Norton,  1  Oh.  137. 

192  Williamson  v.  Berry,  8  How.  U.  S.  496;  Gowan  v.  Jones,  10  S.  &  M. 
164;  Dickersou  v.  Talbot,  14  B.  Monr.  GO. 

i93Mason  v.  Osgood,  64  N.  C.  4G7;  Rawlins  v.  Bailey,  15  Dl.  178;  Valle 
V.  Fleming,  19  Mo.  454;  Wallace  v.  Hall,  19  Ala.  3G7;  Rea  v.  McEachron, 
13  Wend.  4G5;  Bonner  v.  Greenlee,  G  Ala.  411;  Wade  v.  Carpenter,  4 
la.  3G1 ;  State  v.  Towl,  48  Mo.  148. 

191  Henderson  v.  Herrod,  23  Miss.  434;  Tipton  v.  Powell,  2  Coldw.  19; 
Watts  V.  Scott,  3  Watts,  79;  Gowan  v.  Jones,  10  S.  &  M.  164;  Moore  v. 
Greene,  19  How.  U.  8.  G9.  In  some  cases  the  confirmation  of  probate 
sales  is  not  required  by  statute.  Ilobson  v.  E wan,  62  HI.  146;  Robert 
V.  Casey,  25  Mo.  584.  In  Missouri,  the  sale  of  lands  under  an  order  of 
the  probate  court  must  be  confirmed ;  but  confirmation  is  not  indispens- 
able to  sales  in  proceedings  before  the  circuit  court.  State  v.  Towl,  48 
Mo.  148;  Castleman  v.  Relfe,  50  Mo.  583. 

195  Grayson  v.  Weddl.;,  G3  Mo.  523. 

19«  Koehler  v.  Ball.  2  Kans.  172. 


VOID    JUDICIAL    SALES.  59 

of  the  proceeding  for  confirmation  is  to  furnish  an  opportu- 
nity for  inquiry  respecting  the  acts  which  have  been  done 
under  the  license  to  sell.  The  court  may,  if  it  deems  best, 
ratify  various  irregularities  in  the  proceedings.  If  the 
officer  changed  the  terms  of  the  sale,  the  court  may  ratify 
his  action,  provided  the  terms,  as  changed,  are  such  as  the 
court  had  power  to  impose  in  the  first  instance. ^^"  As  to  the 
matters  upon  which  a  court  is  required  to  adjudicate  in  its 
order  of  confirmation,  we  see  no  reason  why  its  decision 
should  not  be  binding,  and  should  not  preclude  the  re-asser- 
tion of  any  matter  which  was  either  passed  upon  l)y  the 
court,  or  which  the  parties  might  have  had  passed  upon  if 
they  had  chosen  to  bring  it  to  the  attention  of  the  Court.^^^ 
But  the  curative  ])owers  of  orders  of  confirmation  extend  to 
voidable  rather  than  to  void  sales.  If  a  sale  be  void 
because  the  court  did  not  have  jurisdiction  to  order  it,  an 
order  confirming  it  is  necessarily  inoperative.  "The  sale 
being  void,  there  was  no  subject-matter  upon  which  the 
order  of  confirmation  could  act.  If  the  court  had  no  juris- 
diction to  order  the  sale,  it  had  none  to  confirm  it.  Where 
there  is  no  power  to  render  a  judgment  or  to  make  an  order, 
there  can  be  none  to  confirm  or  execute  it. "  ^'^^  If,  after  prop- 
erty is  sold  at  proljate  sale  to  the  highest  bidder,  he  fails  to 
comply  with  his  ))id,  and  another  person  is  substituted  in  his 
place  and  is  reported  to  the  court  as  the  purchaser,  and  the 
sale  is  confirmed  to  the  latter,  he  can  not  avoid  the  sale  and 
1)0  exhonerated  from  paying  the  purchase  price.  "The 
mere  substitution  of  one  person  for  another  can  not  afiect 
tlie  validity  of  the  sale.  The  order  directing  the  sale,  and 
the  order  confirming  it,  give  vitality  the  purchase."'-'* 

i!»7  Jacob's  Appeal,  23  Pa.  Stat.  477;  Emery  v.  Vroman.  10  Wis.  689; 
Thorn  V.  Ingram,  25  Ark.  oS. 

'^••^  Willis  V.  Nicholson.  21  La.  An.  -yl');  Cockey  v.  Colt-  2S  Md.  271); 
Uoiilikiss  V.  Cutting,  14  Minn.  .j:57;  Jirown  v.  (iilmor,  S  Md  322;  Thorn 
V.  Ingi-am,  2.")  Ark.  .58;  Osman  v.  Tra|)hagtMi,  23  Mich.  80;  Conover  v. 
Mii-grovc.  (;s  III.  :,s. 

I'-^'TowMscnd  V.  'I'allant,  33  Cal.  .",4;  Slirivcr  v.  Lynn,  2  How.  U.  .S.  '>7 ; 
Hawkins  v.  Hawkins,  2S  Ind.  70.     See  IIcIImI  v.  Hi-tlicl,  (;  Hush,  <;.-). 

'•woHalleck  v.  Guy,  '.)  (Jal.  107;  Ewing  v.  llighy,  7  Oii..  pt.  p.  lOS. 


n 


tJO  NOII)    .IIDICIAI,    SALES. 


Skc-.  4o.  Deed  essentia/  to  the  Transfer  of  Legal  Title. 
— A  conveyaiioo  is  necessarv  to  invest  the  purchaser,  at  an 
oxcculion,  ohaiieery  or  probate  sale,  with  the  le<ji;al  title. '-'^^ 
In  Maryland  and  Texas,  this  rule  seems  not  to  apply  to  ex- 
ecution sales,'-'"'-  though  in  the  last  named  state,  a  convey- 
ance by  an  administrator  is  conceded  to  be  essential  to  the 
transfer  of  the  legal  title  after  a  probate  sale."^ 

Skc.  44.  Deed,  loJien  and  by  Whom  to  be  Made. — In 
Massachusetts  and  Maine,  under  statutes  prescribing  that 
licenses  for  sales  should  continue  in  force  for  one  year  only 
after  they  were  given,  it  was  held  that  the  execution  of  a 
deed  was  a  part  of  the  sale,  and  that,  if  not  executed  within 
one  3'ear  after  the  granting  of  the  license,  it  was  void.'''^ 
We  can  not  concur  in  this  opinion.  A  sale  is  certainly  com- 
plete w^hen  it  has  been  regularly  confirmed  by  the  court, 
and  the  purchase  price  has  been  paid  to  the  person  entitled 
to  receive  it.  Even  if  this  be  not  true,  the  purchaser  has  ac- 
quired an  equitable  title  ; — a  right  to  a  conveyance  in  pur- 
suance of  his  purchase  and  payment.  A  court  of  equity 
Avould  recognize  and  protect  this  right,  by  decreeing  a  con- 
veyance.^"^ If  a  conveyance  can  be  compelled,  certainly  it 
ought  not  to  be  void  merely  because  made  without  com- 
pulsion.^'" No  conveyance  ought  to  be  made  before  the 
payment  of  the  purchase-money. '■'"'  If  made  before  such 
payment,  it  is  void  in  Indiana."-"*^     But,  we  apprehend  that, 

201  Freeman  on  Executions,  sec,  324 ;  Merrit  v.  Terry,  13  Johns.  471 ; 
Doe  V.  Hardy,  52  Ala.  291;  Hudgens  v.  Jackson,  51  Ala.  514;  Van  Als- 
tyne  v.  AViniple,  5  Cow.  162;  Farmers'  Bank  v.  Merchant,  13  How. 
Pr.  10. 

■i'fi  Boring  v.  T.emmon,  5  H.  «fc  J.  223;  Leland  v.  Wilson,  34  Tex.  !)1 ; 
Fleming  v.  Powell,  2  Tex.  225. 

'•^^  Sypert  v.  McCowen,  28  Tex.  638. 

i^  Macy  V.  Raymond,  9  Pick.  287;  Wellnian  v.  Lawrence,  15  Mass. 
326;  Mason  v.  Ham,  36  Me.  573. 

205  Piatt's  Heirs  v.  McCullough,  1  McLean,  69. 

20C  Howard  v.  Moore,  2  Mich.  226;  Osman  v.  Traphagen,  23  Mich.  SO. 

Lf;7  Barnes  v.  ^Morris,  4  Ired.  Eq.  22. 

•■^  Ruckle  V.  Barbour,  48  Ind.  274;  Chapman  v.  Harwood,  8  Blackf.  82. 
In  Alabama,  an  oi-der  to  convey  before  all  the  purchase-money  is  ])aid. 
is  a  nullity.     Corbitt  v.  Clenny,  52  Ala.  480. 


VOID    JUDICIAL    SALES.  61 

as  a  general  rule,  such  a  coiivej^anoe  is  voidable  rather  than 
void.''^'^  If  the  statute  under  which  a  sale  is  made,  does 
not  authorize  a  conveyance,  until  after  the  expiration  of  the 
time  allowed  the  defendant  to  redeem  his  property,  a  deed 
made  in  advance  of  that  time  is  a  nullity .-^'^  After  the 
right  to  a  deed  has  become  perfect,  we  believe  it  may  be 
made  at  any  time.  An  administrator's,  executor's  or 
guardian's!  deed  must  be  made  in  person.  These  officers 
exercise  powers  in  the  nature  of  trusts  wherein  special  con- 
fidence is  reposed.  Hence,  they  can  not  delegate  their  au- 
thority to  agents.'-^'  Sheriffs  and  constables,  on  the  other 
hand,  may  have  deputies,  and  such  deputies  are  competent 
to  execute  conveyances  in  the  names  of  their  principals. -^- 
In  Mississippi,  an  administrator  de  bonis  non  can  not  exe- 
cute a  conveyance  where  the  sale  was  made  by  his  prede- 
cessor in  office.-^-^  But  we  judge  the  better  rule  to  l)e,  that 
such  an  administrator  may  complete  whatever  the  first  ad- 
ministrator ought  to  have  d(nie.'-^^^  A  conveyance  made  to 
a  person  not  entitled  to  receive  it,  as  where  a  deed  is  given 
to  one  as  assignee  when  no  assignment  has  been  made,  i? 
void. 215 

Sec,  45.  JJeed,  when  Void  because  not  in  Pvoi)er  Form. 
— The  instances  in  which  a  deed,  issued  in  pursuance  of 
an  execution  or  chancery  sale,  is  void  for  errors,  defects 
or  mistakes  in  form,  are  very  rare.  In  fact,  any  instrument 
executed  by  an  officer  authorized  to  make  it,  purporting  to 
convey  the  property,  is  pi()b;il)ly  sufficient,  if  the  acts  neces- 
sary to  authorize  him  lo  make  a  conveyance  can  be  shown. -i" 
Of  course  the  deed  must  ])e  executed  with  the  formalities 
esseutinl   to   other  deeds,  and  must  show  that  the  person 

2W  Osman  v.  Trai»ha-<eii.  -IW  Midi.  80. 
•m  Freeman  un  Executions,  sec.  310. 
•-JU  Gridley  v.  Tliilliits,  ",  Kans.  340. 
212  Freeman  on  Exemtions.  sec.  I527. 
2i:(  Davis  V.  Brandon,  1   How.  Miss.  l.")4. 
■■^'^  Gridley  v.  Phillips,  .">  Kans.  '.\^>\. 
•^1' Carpont.-r  v.  Slicrfv,  71  III.  427. 
2ifi  Freeman  on  Executions,  sec.  '.'>'!'■). 


G'2  VOin    .ll'DICIAL    SALES. 

who  >ii:iis  it  is  actinii-  in  ;in  olKcial  ciipacity,  and  not  merely 
oonvevinji:  his  own  title  to  the  property.  In  some  States  a 
tonn  lor  sheriffs  deeds  is  prescribed  by  statute.  These 
statutes  are  generally,  but  not  universally,  declared  to  be 
dirt'ctorx'  merely.-''  Deeds  executed  by  executors,  adminis- 
trators or  guardians  are,  in  many  States,  treated  with  less 
indulgence  than  those  made  by  sheriffs.  This  is  particu- 
larly the  case  where  a  statute  has  directed  that  some  state- 
ment or  recital  shall  be  set  forth  in  a  deed.  Such  statutes, 
with  reference  to  administrator's  and  guardian's  deeds,  have 
been  held  imperative,  and  not  directory  merely.  Thus, 
where  a  statute  required  an  order  to  be  set  forth  at  large,  a 
deed  merely  referring  to  such  order  and  stating  its  sub- 
stance was  adjudged  void.^^^  The  correctness  of  this  de- 
cision may  be  doubted  ;  but  it  is  certain  that  an  omission  to 
refer  to  an  order,  or  a  reference  which  did  not  fully  describe 
the  order,  would,  under  a  statute  similar  to  the  one  just 
alluded  to,  render  the  deed  void.^^^  Although  a  statute  re- 
quires the  order  of  sale  and  also  that  of  confirmation  to  be 
referred  to  or  set  out  in  the  deed,  a  mere  mistake  in  the 
reference  is  not  fatal,  if  it  appears  from  the  deed,  taken  as 
a  whole,  that  the  reference,  as  made,  is  a  mistake,  and  that 
it  was  intended  to  embrace  the  orders  under  which  the  sale 
and  deed  were  in  fact  made.-^^  The  same  rule  applies  to 
mistakes  in  the  recitals  in  deeds  made  in  pursuance  of  exe- 
cution sales. ■■^•'^  Irrespective  of  any  statutory  directions  on 
the  subject,  every  administrator's,  executor's  or  guardian's 
deed  should  refer  to  the  authority  or  license  under  which  it 
is  made  ;  should  state  that  the  person  making  it  acted  under 
such  license  ;  and  should  contain  apt  words  to  convey  the 
estate  of  the  ward  or  decedent,  as  contradistinguished  from 

217  1b.,  sec.  329. 

218 Smith  V.  PMnch,  1  Scam.  323. 

219  Atkins  V.  Kinnan,  20  Wend.  241. 

32osiieldon  v.  Wright,  5  N.  Y.  497;  Thomas  v.  Le  Baron,  8  Met.  361; 
Jones  V.  Taylor,  7  Tex.  242;|Moore  v.  Wingate,  53  Mo.  398;  Glover  v. 
RufTin.  <;  Oh.  2r).j. 

.fj)  i-'rec'iiian  on  Executions,  sec.  329. 


VOID    JUDICIAL,    SALES.  63 

the  private  estate  of  the  person  executing  the  deed  f^'  but 
it  need  not  recite  all  the  steps  taken  in  making  the  sale,  as 
that  the  sale  was  at  public  auction,  and  that  the  grantee 
was  the  highest  bidder.^ 


CHAPTER  V. 


THE  LEGAL  AJH)  EQUITABLE   EIGHTS  OF  PURCHASERS 

AT  VOID  SALES. 

Section  46.  Purchaser's  Right  to  Resist  the  Payment  of  liis  Bid. 

Sec.  47.  Purchaser's  Right  to  Recover  Money  Paid. 

Sec.  48.  Purchaser's  Right  to  urge  Acts  of  Ratification  as  Estoppels  in 

his  Favor. 
Sec.  49.  Purchaser's  Right  to  Subrogation  Denied. 
Sec.  50.  Purchaser's  Right  to  Subrogation  Affirmed,  under  Execution 

and  Cliancery  Sales. 
Sec.  51.  Purchaser's  Right   to  Subrogation   Affirmed,  under   Probate 

Sales. 
Sec.  52.  Purchaser's  Right  to  Subrogation,  where  he  is  Guilty  of  Fraud. 
Sec.  53.  Pui-chaser's  Right  to  Aid  of  Equity  in  Supplying  Omissions  and 

Correcting  Mistakes. 

Sec.  4f).  Purchaser' s  Bight  to  Resist  the  Payment  of  his 
Bid. — If  the  purchaser  at  a  void  execution  or  judicial  sale 
be  so  fortunate  as  to  discover  the  true  character  and  effect 
of  the  sale,  prior  to  the  actual  payment  of  the  purchase 
price,  he  will,  of  course,  seek  to  avoid  making  such  pay- 
ment. No  doubt  the  bidder  at  a  void  sale  is  entitled  to  be 
released  from  his  bid.  "  The  purchaser  at  a  partition  sale 
is  entitled  to  the  whole  title  partitioned.  If,  from  any  ir- 
reguhirities  or  defects  in  the  suit  or  in  the  proceedings,  the 
])urchaser  would  not,  by  completing  his  bid  and  receiving 
his  conveyance,  ])ecome  invested  with  the  Avhole  title   with 

222  Jones  V.  Taylor,  7  Tex.  242;  Bobb  v.  Barnum,  .'iO  Mo.  394;  Griswold 
V.  Bigelow,  6  Conn.  258 ;  Lockwood  v.  Sturdevant,  6  Conn.  373.  The  two 
cases  last  named  arc  liniited  in  Watson  v.  Watson.  10  Conn.  77. 

••«'  Kingsl>ury  v.  Wild.  3  N.  II.  30. 


t)l  \()I1)    .IiniriAL    SALKS, 

which  tho  court  assumetl  to  dcul,  then  ho  will  be  released 
from  his  l)i(l.  Hence,  it'  jurisdiction  has  not  been  acquired 
(t\  t Moiic  of  tho  co-tenants,  the  purchaser  will  be  released."^ 
So,  in  i)urchasos  under  execution  sales,  the  purchaser  can 
not  1)1'  conipollod  to  make  [)aymont,  if  the  proceedings  are 
so  defective,  in  any  respect,  that  they  can  not  divest  the 
title  of  tho  Judgment  debtor.-^  Every  purchaser  has  a 
right  to  suppose  that,  by  his  purchase,  he  will  obtain  the 
title  of  tho  defendant  in  execution  in  case  of  execution 
sales,  and  of  the  ward  or  decedent  in  the  case  of  a  guard- 
ian's or  administrator's  sale.  The  promise  to  convey  this 
title  is  tho  consideration  upon  which  his  bid  is  made.  If 
the  judgment  or  order  of  sale  is  void,  or  if,  from  any 
cause,  the  conveyance,  when  made,  can  not  invest  him  with 
the  title  held  b}^  the  parties  to  the  suit  or  proceeding,  then 
his  bid,  or  other  promise  to  pay,  is  without  consideration  and 
can  not  be  enforced.  He  may  successfully  resist  any  action 
for  the  purchase-money,  whether  based  upon  the  bid  or 
upon  some  bond  or  note  given  by  him.^^  In  Mississippi, 
however,  he  can  not  avoid  paying  the  purchase-price  of  per- 
sonal property  of  which  he  has  obtained,  and  still  retains 
possession  by  virtue  of  the  sale.'-"^^  The  distinction  between 
void  sales  and  defective  titles  must  be  kept  in  view,  to  avoid 
any  misapprehension  of  the  rights  of  one  who  has  pur- 
chased at  an  execution  or  judicial  sale,  without  in  fact 
obtaining  anything.  If  he  obtains  nothing  because  of  a  de- 
fect in  the  proceedings,  he  can  defeat  an  action  for  the 
amount  of  his  bid.  If,  on  the  other  hand,  the  proceedings 
are  perfect,  but  the  defendant,  or  ward,  or  decedent,  had  no 
title  to  be  sold  nor  conveyed,  the  purchaser  is  nevertheless 

•-H4  Freeman  on  Cotenancy  and  Partition,  sec.  547. 

L'-zo  Freeman  on  Executions,  sec.  301. 

•■"''Lauf^hman  v.  Tljonipson,  6  S.  &  M.  259;  Campbell  v.  Brown,  fi  How. 
Miss.  230;  Bartee  v.  Tiionipkins,  4  Sneed,  G23;  Todd  v.  Dowd,  1  Met. 
(Ky.)  281;  Barrett  v.  Churchill,  18  B.  Monr.  387;  Washington  v. 
McCaughan.  34  Miss.  304;  Riddle  v.  Hill,  51  Ala.  224. 

^-''  \Vashin;;ton  v.  McCaughan,  34  Miss.  304;  Martin  v.  Tarver,  43  Miss. 
517:  .Taggers  v.  ftriflin,  43  Miss.  134. 


VOID    JUDICIAL    SALES.  (iD 

bound  by  his  bid.  Caveat  emptor  is  the  rule  of  all  execu- 
tion and  judicial  sales.  Each  bid  is  made  for  such  title  as 
the  defendant,  Avard  or  decedent  may  have,  and  is  therefore 
binding,  whether  either  had  title  or  not."^ 

Sec.  47.  TJie  Purchaser  s  Right  to  Recover  back  Money 
Paid. — Whoever  pays  out  money  on  account  of  a  purchase 
made  at  a  void  sale,  parts  with  a  valuable  consideration,  for 
which  he  acquires  nothing.  The  question  then  arising,  is  : 
Has  the  purchaser  any  remedy?  and,  if  so,  what  is  the  rem- 
edy, and  to  what  cases  may  it  be  applied  with  success? 
Where  the  plaintiff' is  the  purchaser,  he  may,  in  most  states, 
upon  failure  of  his  title,  in  efiect  vacate  the  apparent  satis- 
faction produced  by  the  sale,  and  obtain  a  new  execution. '^^■* 
If  the  title  fails  through  defects  in  the  proceedings  arising 
from  the  neglect  or  misconduct  of  the  sheriff,  the  purchaser 
can  sustain  an  action  on  the  case  against  that  officer. ■^'^ 
Where  a  purchase  is  made  under  a  decree  in  cf^uity,  and 
such  decree  is  reversed  for  a  jurisdictional  defect  in  the  pro- 
ceedings, or  where  the  title  fails  because  the  grantee  of  a 
mortgagor  was  not  a  party  to  a  foreclosure,  the  plaintiff  has 
the  right  to  prosecute  further  proceedings.  In  the  case  first 
named,  ho  may  have  the  process  properly  sei'ved,  and  thus 
give  the  court  jurisdiction  to  proceed.  In  the  second  named 
case,  he  may  apply  to  the  court,  have  the  sale  vacated,  the 
satisfaction  cancelled,  and  tlu'ii,  by  supplemental  bill,  bring 
ill  the  proper  parties  and  have  the  property  re-sold.  In 
either  case  the  purchaser  may,  by  ai)})lying  to  the  court  in 
the  original  suit,  have  the  proceedings  conducted  for  his 
benefit,  though  in  the  name  of  the  original   plaintifi'.'^^     In 

22" Freeman  on  Exf'cutions,  sec.  ;^01 ;  Freeninn  on  Cotenanej' and  Par- 
tition, sec.  547;  Osterln-rg  v.  Union  Trust  Co.,  03  U.  S.  424;  McMaiuis  v. 
Keitii.  4t»  111.  389;  Sliort  v.  Portor,  44  Miss.  533;  Bassett  v.  Lockard, 
(;0  111.  Ifil:  ('o;;an  v.  Frisl)y,  30  Miss.  185. 

■■«!' Freeman  on  Exeeiitions,  see.  54;  Sargent  v.  .Stiinn.  23  Cal.  35!); 
Pijier  V.  Ehvood,  4  Dfn.  105;  Adams  v.  Smith,  5  Cow.  280;  Watson  v. 
Reissig,  24  III.  2S1. 

■-'^  Sexton  V.  Ncvcrs.  20  Pick.  451. 

■i^i  lioggs  V.  llar^^ravc  H",  C;il.55;):   Hiirt(,n  v.  I.ii  <.  21   Cal.sT:  .lolni- 


<)()  ^•(">In  jroiciAL  sai.ks. 

Ni'w  \ ovk  and  Tennessee,  if  the  j)rocec(lings  ;ire  ulterly 
void,  the  puroliaser  may  recover  from  the  plainlill"  the 
amount  paid  n])()n  the  hitter's  judtjjment.''*"  In  Texas,  if  a 
sah'  under  a  valid  Judgment  be  void  for  defects  in  the  pro- 
ceeding's, the  [)nreliaser  is  entitU^d  to  the  property,  uidess 
tlie  defendant  will  reimburse  him  for  the  amount  he  has 
paid  toward  satisfying  the  judgment.**^  In  Kentucky,  In- 
diana, Illinois  and  Texas,  if  the  defendant  in  execution  has 
no  title,  he  may  be  compelled,  l)y  proceedings  in  equity,  to 
reimburse  the  purchaser  for  the  amount  contributed,  by 
means  of  the  purchase,  to  the  satisfaction  of  the  judg- 
ment.'*^ But  we  think  the  })ettcr  rule  is  that,  unless  pro- 
ceeding upon  the  ground  of  fraud  or  misrepresentation,  or 
some  other  well  known  ground,  a  purchaser  at  an  execution 
sale  can  not,  by  any  independent  action,  recover  of  either 
of  the  parties  the  amount  of  his  bid.^^^  Such  an  action  is 
necessarily  founded  upon  a  mistake  of  law.     The  purchaser 

son  V.  Kobortson,  34  Md.  165;  Cook  v.  Toumbs,  36  Miss.  685;  Hudgin 
v.  lludgiii,  0  Gratt,  320.    See  also  Scott  v.  Dunn,  1  D.  &  B.  Eq.  425. 

232  Chapman  v.  Brooklyn,  40  N.  Y.  372;  Schwinger  v.  Hickok,  53  N. 
Y.  280;  Ilenderson  v.  Overton,  2  Yerg-.  394.  The  principle  upon 
which  these  cases  profess  to  proceed  is,  that  a  party  may  recover  moneys 
paid  where  there  is  a  total  failure  of  consideration.  This  principle  is 
sufficiently  supported  by  the  authorities  (Moses  v.  McFarlano,  2  Burr. 
1009;  Rheel  v.  Hicks,  25  N.  Y.  289;  Kingston  Bank  v.  Eltinge,  40  N.  Y. 
391) ;  but  we  doubt  its  applicability  to  execution  sales. 

a«  Johnson  v.  Caldwell,  38  Tex.  218;  Howard  v.  North,  5  Tex.  290.  A 
person  seeking  to  cancel  a  sheriff's  deed  as  a  cloud  upon  his  title  must, 
in  Texas,  first  repay  the  amount  for  which  the  property  was  sold  by  the 
sheriff.  Uerndon  v.  llice,  21  Tex.  457;  Morton  v.  Welborn,  21  Tex. 
773;  Brown  v.  Lane,  19  Tex.  205. 

z«  McGhee  v.  Ellis.  4  Litt.  245;  Muir  v.  Craig,  3  Blackf.  293;  Warner 
T.  Helm,  1  Gilm.  220;  Price  v.  Boyd,  1  Dana,  436;  Hawkins  v.  Miller,  26 
Ind.  173;  Preston  v.  Harrison,  9  Ind.  1;  Jones  v.  Henry,  3  Litt.  435; 
Dunn  v.  Frazier,  S  Blackf.  432;  Pennington  v.  Clifton,  10  Ind.  172; 
Richmond  v.  Marston,  15  Ind.  134;  Julian  v.  Beal,  26  Ind.  220;  Howard 
T.  North,  5  Tex.  290;  Arnold  v.  Cord,  16  Ind.  177;  Taylor  v.  Conner,  7 
Ind.  115. 

^'>  Branham  v.  San  Jose,  24  Cal.  585;  Boggs  v.  Hargrave,  16  Cal.  559; 
Salmond  v.  Price,  13  Oliio.  308;  Laws  v.  Thompson,  4  Jones,  104;  Ilal- 
combe  v.  Loudi.-rmilk,  3  Joiies,  491;  The  Monte  Allegre,  9  Wheat.  616; 
Burns  v.  Hamilton,  33  Ala.  210. 


VOID    JUDICIAL    SALES.  67 

is  sure  to  base  his  claim  upon  the  fact  that  he  mistook  the 
legal  effect  of  the  proceedings  in  the  case,  or  of  the  defend- 
ant's muniments  of  title.  And  it  is  well  known  that  a  mis- 
take of  law  is  not  a  sufficient  foundation  for  relief  at  law 
or  in  equity.  The  rule  of  caveat  emptor  unquestionably 
applies  to  judicial  sales  ;  and  we  know  not  how  this  rule 
can  co-exist  with  another  rule  reqwiring  one  of  the  parties 
to  indemnify  the  purchaser  in  the  event  of  a  failure  of  the 
title.  In  a  few  of  the  states,  purchasers  have  been  given  a 
statutory  remedy. ^^  The  purchaser  at  a  void  execution 
sale  may,  by  the  payment  of  his  bid,  wholly  or  partly  dis- 
charge some  lien  or  claim  on  the  property  purchased.  The 
question  then  arising  is  this  :  Has  he  the  right  to  hold  the 
property  until  the  amount  thus  paid  is  refunded  to  him? 
The  consideration  of  this  question  is  resei-ved  for  a  subse- 
quent section. '"^ 

Sec.  48.  Ratification  of  Void  Sales  by  the  Acts  of  the 
Parties  in  Interest. — As  a  general  rule,  a  confirmation  or  rat- 
ification can  not  strengthen  a  void  estate.  "For  confirmation 
may  make  a  voidable  or  defeasible  estate  good,  but  can  not 
operate  on  an  estate  void  in  law."^^  If  this  rule  be  one  of 
universal  application,  then  there  can  be  no  necessity  for 
considering  the  question  of  ratification  in  connection  with 
void  judicial  sales.  But  this  is  one  of  those  rules  which  are 
so  limited  by  exceptions  that  the  circumstances  to  which  it 
may  be  applied  are  scarcely  more  numerous  than  those  from 
which  its  application  must  be  withheld.  There  can  now  be 
scarcely  any  doubt  that  void  judicial  sales  are  within  the 
exceptions  and  are  unaffected  by  the  rule.'-"'  These  sales 
may  be  ratified,  cither  directly,  or  by  a  course  of  conduct 
which  estops  the  party  from  denying  their  validity.  Thus, 
if  the  defendant  in  execution,  after  a  void  sale  of  his  prop- 

23«  C.  C.  P.  of  Ciil.,  sec.  70S;  Ilalcorabe  v.  Loudermilk,  ;{  Jonos,  491; 
Chambers  v.  Cochran,  18  Iowa,  IGO. 

■■«T  See  sees.  40-51 . 

238Bouvier'8  Law.  Die,  title  "  Confirmation." 

'-«9  Maple  V.  Kussart,  .'J^  Pa.  St.  :MS;  Johnson  v.  Fritz,  44  Pa.  St. 
449;  Deford  v.  Mercer,  24  la.  118;  Pur.sley  v.  Hays,  17  la.  310. 


08  VOID    JUDICIAL    SALES. 

erty  li:is  hceii  miulc,  cl.iiins  and  receives  the  surplus  proceeds 
of  the  sah',  with  a  full  kiu)\vledge  of  his  rights,  his  act  must 
thereafter  he  treated  as  an  irrevocable  contirniation  of  the 
sale.-'"  In  a  case  decided  iu  Pennsylvania,  a  judgment 
was  recovcretl  against  the  administi-ator  of  an  estate.  The 
heirs  of  the  decedent  were  not  parties  to  the  action  in  which 
this  judgment  Avas  recovered,  and  were,  therefore,  under  the 
laws  of  that  state,  unafiected  by  it.  Under  this  judgment, 
writs  were  issued  and  lands  of  the  decedent  levied  upon, 
condenmed  and  sold.  They  produced  funds  more  than  suf- 
ticieut  to  satisfy  the  judgment.  The  surplus  was  paid  to  the 
heirs.  One  of  the  daughters  having  brought  ejectment  for 
the  lands,  the  Supreme  Court,  in  discussing  and  determin- 
ing her  rights,  said:  "She  was  perfectly  acquainted  with 
the  fact  that  she  had  not  been  served  with  process  to  make 
her  a  party  to  the  judgment  on  which  the  sale  was  made, 
and  that  she  had  not  voluntarily  made  herself  a  party  to 
that  proceeding  without  process  ;  and  there  is  no  evidence 
to  repel  the  presumption  that  she  was  equally  well 
acquainted  with  the  rules  of  law  which  entitled  her  to  dis- 
regard a  sale  made  under  such  a  judgment,  as  having  no 
operation  whatever  ujDon  her  rights,  unless  she  did  some  act 
which,  on  principles  of  equity  and  common  honesty,  might 
estop  her  from  impeaching  it.  As  she  was  not  a  defendant 
in  the  execution,  she  had  no  right,  in  that  character,  to 
receive  an}'-  part  of  the  money,  after  payment  of  the  credi- 
tor's claim.  Her  only  title  to  the  money  depended  upon 
the  effect  of  the  proceedings  in  divesting  her  estate  in  the 
land  and  converting  it  into  money,  b}^  passing  her  title 
to  the  purchasers.  Upon  this  ground  alone  could  she 
make  any  claim  to  the  money,  in  law  or  equity.  The 
receipt  of  her  share  of  the  money  was  therefore  an 
affii-matioii  that  her  title  had  passed  to  the  purchasers  ])y 

•^*>  Stroble  v.  Smith,  8  Watts,  280;  Headen  v.  Onbre,  2  La.  An.  142; 
Sittig  V.  Morgan,  5  La.  An.  'u\\  McLeod  v.  .rolinson,  28  Miss.  374; 
Southard  v.  Periy,  21  la.  488;  State  v.  Stanley,  14  Iiid.  400;  Crowell  v. 
McConkey,  .')  Pa.  S.  1G8. 


VOID    JUDICIAL    SAL,E*>.  69 

virtue  of  the  sheriff's  sale  ;    and  she  can  not  be  received  to 
make    a    contrary  allegation    now,  to  the  injury  of    those 
%vho    paid   their   money  on   the   faith   of  the   couvevance. 
"Where  a  sale  is  nuide  of  land,   no  one  can  be  permitted 
to  receive  both  the  money  and  the  land.     Even  if  the  ven- 
dor possessed  no  title  whatever  at  the  time  of  the  sale,  the 
estoppel  would  operate  upon  a  title  subsequently  acquired. 
It  was  held  by  this  court,  at  the  late  sitting  in  Harrisburg, 
that  "  equitable  estoppels  of  this  character  apply  to  infants 
as  well  as  adults,  to  insolvent  trustees  and  guardians  as  ^vell 
as  persons  acting  for  themselves,  and  have  place  as  well 
Avhere  the  proceeds  arise  from  a  sale  by  autltority  of  laiv  as 
where  they  spring  from  the  act  of  the  party. '^^    The  applica- 
tion of  this  principle  does  not  depend  upon  any  supposed  dis- 
tinction between  a  void  and  voidable  sale.    The  receipt  of  the 
money,  with  the  knowledge  that  the  purchaser  is  paying  it 
upon  an  understanding  that  he  is  purchasing  a  good  title, 
touches  the  conscience,  and  therefore  binds  the  right  of  the 
party  in  one  case  as  well  as  the  other. "-^     Perhaps  it  is  not 
essential  that  the  defendant  in  execution  should  have   di- 
rectly received  any  part  of  the  proceeds  of  the  sale.     If  he 
knows  of  the  sale,  makes  uo  objections  thereto,  and  permits 
the  proceeds  to  Ije  applied  to  the  payment  of  his  debts,  he 
will,  at  least  in  Pennsjdvania,  be  precluded  from  denj-ing 
its  validity.^*'      If  lands   be    sold    at  a  partition   or  other 
chancery  sale,  no   co-tenant  w4io  has  claimed  and  received 
his  share  of  the  proceeds  can  deny  the  validity  of  the  par- 

**i  CormiiDnwealth  v.  Shuniair.s  Adininistiator,  0  Harris,  :{46;  McPher- 
son  V.  CunlifV.  11  S.  &  K.  i-lC :  Wilscni  v.  Bi<;ger,  7  W.  &  Ser.  Ill ;  Stroble 
V,  Sinitli,  8  Watts,  280;  Benedict  v.  Montgomery,  7  W.  &  Ser.  238;  Mar- 
tin V.  Ivfs,  17  Her.  6c  R.  :W4;  Crow.-ll  v.  McConkey,  5  Barr,  168; 
Jlainilton  v.  Ilaniilton,  4  Barr,  193;  Dean  v.  Coiiiielly,  0  Barr,  23!);  Rob- 
inson V.  Justice,  2  Penn.  Rep.  19;  Share  v.  Anderson,  7  Ser.  &  R.  48; 
Furiwss  V.  Ewing,  2  Barr,  471);  Adlinn  v.  Yard.  1  Rawle,  103. 

■»■■!  Smith  V.  Wiinlfii,  V.)  Pa.  St.  42!». 

w.  Spragg  V.  Sliriver,  2.">  J'a.  St.  2S2;  Mitchell  v.  Freedley,  10  Pa.  St. 
•'lis. 


70  VOID    JUDICIAL    SALES. 

tititni.  He  can  not  be  allowed  to  retain  the  money  and 
repiin  the  land.'^^*  The  same  principle  applies  to  sales  made 
by  guardians,  administrators  and  executors.  A  ward  or 
heir  may  elect  to  affirm  a  void  sale,  and  tlnis  entitle  himself 
to  the  proceeds.''''*  When  a  valid  election  is  once  made,  it 
can  not  be  revoked.  The  notification  by  a  ward  or  heir  of 
a  sale  made  by  an  administrator  or  guardian  may  be  made 
also  by  receiving  the  proceeds  of  the  sale.^^^  Of  course  this 
ratification  can  not  be  accomplished  through  the  action  of  a 
minor,  or  of  any  person  not  competent  to  act  for  himself. ^^^ 
If  the  person  whose  property  was  sold  be  a  minor,  he  can 
not  ratify  the  sale  until  after  he  becomes  of  lawful  age. 
Nor  can  anyone  ratify  for  him  during  his  minority.  No  act 
done  or  sanctioned  by  his  guardian  can  bind  him  as  a  rati- 
fication ;  nor  will  he  be  held  to  affirm  the  sale  merely  on  the 
ground  that,  during  his  minority,  the  proceeds  were  applied 
to  his  use  or  for  his  benefit,'-'^®  nor  because  such  proceeds 
were  accounted  for  by  the  administrator  in  his  settlements 
with  the  estate,  no  part  being  paid  over  to  the  heir.**^  In 
Missouri  and  Wisconsin,  the  receipt  of  the  proceeds  of  a 
guardian's  sale  by  a  minor  after  coming  of  age,  or  by  a 
lunatic  after  becoming  sane,  does  not  operate  as  an  affirm- 
ance of  the  sale.^  The  hardship  of  this  rule  is  very  mate- 
rially ameliorated,  in  the  states  named,  by  the  adoption  of 
another  rule,  under  which  a  bona  fide  purchaser  of  lands 
sold   at  a  void  judicial  sale   is   entitled  to  retain,  in  many 

244  Tooley  v.  Gridley,  3  S.  &  M.  493 ;  Merritt  v.  Horno,  5  Oh.  St. 
307. 

245  .Jennings  v.  Kee,  5  Ind.  257. 

24«  Jennings  v.  Kee,  5  Ind.  257;  Lee  v.  Gardner,  26  Miss.  521;  Pursley 
V.  Hays,  17  la.  310;  Deford  v.  Mercer,  24  la.  118;  Wilson  v.  Bigger,  7 
W.  &  S.  Ill ;  Handy  v.  Noonah,  51  Miss.  160. 

247  A  feme  covert  may  affirm  a  void  sale  by  receiving  the  proceeds. 
Kempe  v.  Pintard,  32  Miss.  324. 

x«  Kequa  v.  Holmes,  26  N.  Y.  338;  Wilkinson  v.  Filby,  24  Wis.  441; 
Longworth  v.  Gofortli,  Wright,  192. 

24y  Townsend  v.  Tallent,  33  Cal.  45. 

260  Valle  v.  Fleming,  19  Mo.  454;  Mohr  v.  Tulip,  40  Wis.  66. 


VOID    JUDICIAL    SALES.  71 

cases,  a  charge  or  lien  on  the  property  for  the  amount  paid 
by  him.  It  is  essential  to  every  vahd  ratification,  that  the 
ratifying  acts  were  done  with  a  full  knowledge  of  the  facts 
constituting  the  transaction  to  be  ratified. ^^^ 

Sec.  49.  Right  of  Purchasers  to  he  Subrogated  to  the 
Lien  Discharged,  Denied. — A  judicial  or  execution  sale  is 
usually  made  for  the  purpose  of  satisfying  some  lien  or 
charge  on  the  property  sold.  After  such  sale  is  made  and 
the  amount  of  the  bid  paid,  the  owner  of  the  property,  if 
he  can  avoid  the  sale,  will  not  only  retain  the  property 
which  was  originally  his,  but  will  also  have  its  value  en- 
hanced by  the  amount  paid  to  remove  the  charge  or  lien 
therefrom.  According  to  natural  equity,  it  is  clear  that  the 
owner  ought  not  to  thus  to  profit  by  the  sale,  and  that  the 
purchaser  ought  to  be  subrogated  to  the  rights  of  the  holder 
of  the  charjje  or  lien.  There  is  some  doubt  whether  the 
equity,  which  is  in  fact  administered  by  the  courts,  enforces, 
in  this  case,  what  we  deem  to  be  the  dictates  of  natural 
equity.  In  a  case  decided  in  Indiana,  an  execution  sale  was 
made  under  a  valid  judgment,  but  the  sale  itself  was  inop- 
erative, on  account  of  a  non-compliance  with  the  appraise- 
ment law.  The  purchaser,  however,  claimed  that  he  was 
entitled  in  equity  to  be  subrogated  to  the  rights  of  the 
judgment^creditor.  The  Supreme  Court,  in  denying  the 
claim,  said  :  '*  Can  the  doctrine  of  subrogation  be  applied 
to  the  case  made  by  the  record?  This  is  the  main  inquiry 
in  the  case.  We  are  not  advised  of  any  direct  adjudication 
on  the  point  involved  in  this  question  ;  but  there  are  various 
authorities  to  the  effect  that  '  it  is  only  in  cases  where  the 
p(;rson  paying  the  debt  stands  in  the  situation  of  a  surety, 
or  is  compelled  to  ])ay  in  order  to  protect  his  own  interest, 
or  in  virtue  of  legal  process,  that  equity  substitutes  him  in 
l)lace  of  the  creditor,  as  a  matter  of  course,  without  any 
special  agreement.  A  stranger  pa}ing  the  debt  of  another 
will  not  be  subroirated  to  the  creditor's  riirlit,  in  the  ab- 
sence   of  an    agreement    to    that    cllect :  payment   by    such 

•■•'■'•'  l)ol;ir''iic.  V.  Cress.  71  111.  iisu. 


72  \<)11)    .11  1)1(  lAL    SALE8, 

person  absolutely  oxtinguishcs  the  debt  aiid  security. '^^'^ 
This  exposition  being  coiTcci,  and  wc  think  it  is,  wo  are 
nnable  to  perceive  any  ground  npon  which  the  decree,  so 
t"ar  as  it  subrogates  the  plaintills  to  the  rights  of  the  jndg- 
nient-ereditor,  can  be  maintained.  The  position  of  Marston 
was  that  of  an  ordinary  vendee  at  a  sheriti''s  sale,  and  noth- 
ing more.  There  is  indeed  nothing  in  the  case  ni  any 
degree  tending  to  show  that  the  protection  of  his  interest 
required,  or  even  induced  the  purchase.  He  pnrchased  the 
land  and  paid  for  it,  voluntarily ;  we  must,  therefore,  hold 
that  the  amount  which  he  paid  to  the  sheritf  operated  as  a 
discharge,  jjro  ^«ri/o,  of  the  creditor's  judgment ;  and  that 
judgment  being  thus  satisfied,  there  conld  be  no  substitu- 
tion."-^^ The  (Quotation  we  have  just  made  very  fairly  rep- 
resents the  reasoning  of  those  courts  which  hold  that  the 
purchaser  at  avoid  execution  or  judicial  sale,  can  not  be  sub- 
roijated  to  the  riiihts  of  the  holder  of  the  lien  which  his 
payment  has  contributed  to  discharge.  It  must  be  con- 
fessed that  the  reasoning;  is  in  consonance  with  the  jjeneral 
law  of  snbrooation.  This  general  law  aflbrds  no  encouragre- 
ment  to  one  person  who  voluntarily  discharges  the  debt  of 
another.  Such  a  person  is  styled  a  volunteer.  His  acts 
are  without  compulsion,  and  he  is  therefore  not  classed  with 
those  persons  who  are  compelled  as  sureties,  or  otherwise, 
to  discharge  obligations  on  which  others  are  primarily  re- 
sponsible. The  purchaser  at  a  void  judicial  sale  acts  under 
a  mistake  of  law ;  and  this,  as  is  well  known,  is  barely,  if 
ever,  recognized  as  sufficient  to  induce  the  interposition  of 
courts  of  equity.  Purchasers  at  void  probate  sales  have 
also  been  judged  not  to  be  entitled  to  subrogation  to  the 
rights  of  the  creditors  whose  claims  their  purchases  had 
discharged  .-'^ 

'^''^l  Loading  Cases  in  Equity,  113,  and  auttioritics  there  cited. 
'-'■>■*  Kichniorid  v.  Marston,  15  Ind.  130. 

'■t^Xowler  V.  Colt,  1  Oh.  23G;  Salniond   v.  Price,  13  Oh.  .3G8;  Lieby  v. 
Ludlow,  4  Oh.  4()9.    "i'he  rule  in  this  state  has  been  changed  by  statute. 


VOID    JUDICIAL    SALES.  73 


Sec.  50.  Eight  of  Purchasers  at  Execution  and  Chancer}/ 
Sales   to    Subrogation,    Affirmed. —  We    pass    now  to  the 
authorities   in   conflict    with   those  cited  in  the    preceding 
section.     From   these  authorities  it  will  ])e  seen  that  the 
riiiht  of  purchasers  at  void  sales  to  be  subrogated  to  the 
claims  thev   have   discharged    by  their   payments,  is  very 
generally  recognized  in  this  country.     In  Kentuck}',  a  slave 
named  Jack  Avas  sold  under  execution  against  an  estate,  and 
was  purchased  by   Enos   Daniel.      The   slave    was    subse- 
quently recovered  from  Daniel  in  an  action  of  detinue,  under 
a  title  paramount  to  that  of   the  decedent.      D:inie]  then 
commenced  a  suit  in  chancery  to  be  subrogated  to  the  rights 
of  the  holder  of  the  judgment  under  which  the  sale  had  been 
made.      The  case  was,  therefore,  one  in  which  the  title  had 
failed,  not  from  any  defect  in  the  sale  or  judgment,  but  be- 
cause the  defendant  in  execution  was  not  the  owner  of  the 
property.     The  court,  nevertheless,  sustained  the  claim  for 
subrogation,  saying:   "Admitting  that  Enos  Daniel  knew 
that  Jack  belonged  to  Mary  McLaughlin,  and  was  not  sub- 
ject to  execution  against  the  estate,  this,  in  our  jndgment, 
l)resents  no  legal  impediment  to  his  claim  upon  the  estate, 
for  the  amount  of  Clark's  demand  paid  by  him.     The  slave 
was  sold  as  the  property  of  the  estate,  under  the  process  of 
law  ;  he  purchased  him,  and,  by  his  purchase  and  execution 
of  a  sale-bond  to  Clark,  he  satisfied  and  extinguished  that 
amount  against  the  estate,  and  for  which  it  stood  respon- 
sil)le.      And,  according  to  the  prin('ii)le  repeatedly  recog- 
nized    in    this    court,    he    has    an    equitable    right    to    be 
substituted  in  place  of  the  creditor,  ami  to  have  the  amount 
so  paid  refunded  to  him  out  of  the  estate.     His  equity  rests, 
not  upon  the  ground  of  his  want  of  knowledge  as  to  the 
title  of  the  slave,  but  on  the  ground  of  his  having  discharged 
a  judgment  against  the  estate,  for  which  it  stood  chargeable, 
1)V  a  purchase  of  property  made  under  the  coercive  process 
of  the  law  ;  and,  therefore,  has  equitable  right  to  be  reim- 
bursed out  of  the  estate. "2^^*     In  South  Caioliiia,  a  i)laintiir, 
at  his  own  sale,  purchased  llic   interest  of  the  ddrndant  in 

awMcLiUigblin  v.  Daniel,  8  Daua,   IS:}. 


74  VOID    JUDICIAL    SALES. 

I'ortiiin  pcrsoiKil  propcu'tj.  There  were  older  writs  in  the 
hand  of  (lie  officer  making  the  sale,  and  the  proceeds  were 
exclusively  a})plied  to  those  writs.  The  sale  turned  out  to 
be  void.  The  plaintitl"s  Judgment  was  subsccpiently  paid  ; 
but  he  was  not  repaid  the  purchase-money,  which  had  been 
applied  to  the  extinction  of  elder  claims.  In  these  circum- 
stances, it  was  held  that  his  "claim  is  that  of  a  junior 
creditor  who  has  paid  prior  debts,  and  he  must  be  substitu- 
ted in  the  place  of  the  senior  creditors  and  subrogated  to  all 
their  rights. "'■^^  In  Louisiana  and  Texas,  if  an  execution 
sale  is  void  for  some  irregularity  of  proceeding,  but  is  made 
under  a  valid  judgment,  and  the  proceeds  of  the  sale  are 
applied  to  the  satisfaction  of  the  judgment,  the  defendant 
can  not  recover  the  property  from  the  purchaser  without 
first  repaying  the  amount  paid  at  the  sale.-"  When  a  void 
sale  is  made  under  proceedings  to  foreclose  a  mortgage, 
there  seems  to  be  no  doubt  that  the  purchaser  succeeds  to 
the  title  and  rights  of  the  mortgagee  and  may  enforce  them 
as  the  mortgagee  could  have  done  but  for  the  sale.'-^'^^ 

Sec.  51.  Right  to  Subrogation  Affirmed  in  Favor  of  Pur- 
chasers at  Probate  Sales. — The  cases  in  which  the  equitable 
rule  of  subrogation  has  been  most  fi'cquently  invoked  with 
success,  have  arisen  under  sales  made  by  administrators,  ex- 
ecutors and  guardians.  Thus,  in  North  Carolina,  a  bill  in 
equity  was  filed,  showing  that  a  sale  of  lands  had  been 
made  to  plaintiff  by  the  defendant  as  executor ;  that  in  a 
trial  at  law  the  sale  had  been  declared  void  for  want  of  au- 
thority in  the  executor  to  sell ;  that  the  purchase-money 
had  been  paid  to  the  defendant ;  that  $108  of  this  money 
remained  in  the  hands  of  the  executor,  and  the  balance 
thereof  had  been  applied  to  the  payment  of  the  debts  of 
the  testator.  The  bill  prayed  that  the  $108  be  refunded, 
and  that  as  to  the  balance  of  the  purchase-money  the  plain- 

26«  Bentley  v.  Long,  1  Strob.  Eq.  52. 

2«7 Howard  v.  North,  5  Tex.  316;  Dufour  v.  Camfranc,  11  Mart.  filO. 
i-"*  Brobst  v.  Brock,  10  Wall.  519 ;  Jackson  v.  Bowen,  7  Cow.  13 ;  Gilbert 
V.  Cooley,  Walker's  Ch.  494. 


VOID    JUDICIAL    SALES.  75 

tiff  might  stand  in  the  place  of  the  creditors  whose  claims 
it  had  satisfied,  and  that  the  land  be  sold  for  the  payment 
thereof.  The  following  is  from  the  opinion  of  the  court : 
"  The  claim  of  the  plaintiff" s  to  be  substituted  to  the  cred- 
itors, whose  demands  they  have  satisfied,  is  supported,  we 
think,  by  well  settled  principles.  By  the  laws  of  this  state, 
real  as  well  as  personal  property,  is  liable  for  debts  of  every 
description  ;  but  personal  property  is  the  primary  fund  for 
their  satisfaction.  It  is  alleged  that  the  personal  assets 
were  insuificient  for  the  discharge  of  all  the  debts.  Whether 
this  be  the  fact  or  not  can  only  be  ascertained  by  taking  an 
account  of  the  assets,  and  of  the  administration  of  them. 
If,  in  taking  the  account,  the  fact  should  be  established 
as  allesfcd,  then  it  follows,  from  the  doctrine  sanctioned 
in  the  cases  of  Williams  v.  Williams,'^  and  Saunders  v. 
Saunders,^  that  the  defendant  Dunn  would  have  a  right 
in  a  court  of  equity  to  be  subrogated  to  those  cred- 
itors who  have  been  paid  by  his  advances.  As  between 
Dunn  and  the  plaintiff,  if  their  money  were  yet  in  his  hands, 
he  could  not  retain  it  with  a  safe  conscience,  and  would  be 
obliired  to  refund  it.  And  it  seems  to  us  clear,  that  if  he 
could  rightfully  reclaim  it  from  his  co-defendants,  he  might 
be  compelled  to  assert  this  right,  or  permit  the  plaintiffs  to 
assert  it  in  his  name,  in  order  that  it  might  be  refunded. 
The  court  would  do  this  upon  the  same  principle  by  which 
the  surety,  on  making  satisfaction  to  the  creditor,  becomes 
entitled  to  demand  every  means  of  enforcing  payment 
which  the  creditor  himself  had  against  the  principal  debtor ; 
a  principle  which,  when  traced  to  its  origin,  is  founded  on 
the  plain  obligations  of  humanity  which  bind  every  one  to 
furnish  to  another  those  aids  to  escape  from  loss  which  he  can 
part  with  without  injury  to  himself.  *  *  *  The  doctrine 
of  substitution,  which  prevails  in  equity,  is  not  founded  on 
contract,  but,  as  we  have  seen,  on  the  principles  of  natural 
justice.  Unquestionably  the  devisees  are  not  to  be  injured 
hy  the  mistake   of  the    executor  as  to  the    extent   of   his 

•i'fl2Df;v.  Eq.  69. 
■•«»Ib.,2»J2. 


Hi  \OMt    .irOIClAI,    SAI.KS. 

power  over  tlioir  liind  ;  but  that  mistake  should  not  give  them 
uutair  gains.  The  executor  was  not  an  oiHcious  intermed- 
dler  in  })aying  oli'  the  debts  of  the  testator,  and  his  errone- 
ous l)elier  lliat  he  could  indemnify  himself  in  a  particular 
way  should  not  l)ar  him  from  oblaiuiug  indenniit}^  by  legit- 
imate means.  It  is  not  a  (|uestion  here  whether  a  mistake 
of  law  shall  confer  au}'  rights,  but  whether  such  a  mistake 
shall  be  visited  with  a  forfeiture  of  rights  Avholly  inde- 
pendent of  that  mistake."-'''^ 

In  the  case  of  Valle  v.  Fleming's  heirs,''^'*^  a  void  adminis- 
trator's sale  had  been  made,  and  the  proceeds  thereof  applied 
to  the  payment  of  a  mortgage  existing  on  the  lands  sold. 
Ejectment  was  subsequently  brought,  to  which  the  purchasers 
filed  an  equitable  defense,  and  prayed  to  be  subrogated  to 
the  rights  of  the  mortgagees.  Napton,  Judge,  in  delivering 
the  opinion  of  the  (-ourt,  referred  to  the  equity  maxims,  both 
of  the  common  and  of  the  civil  law,  as  well  as  to  the  decisions 
of  the  American  courts,  and  concluded  as  follows  :  "  Noth- 
ing could  be  more  unjust,  we  may  repeat,  than  to  permit  a 
person  to  sell  a  tract  of  land  and  take  the  purchase-money, 
and  then,  because  the  sale  happens  to  be  informal  and  void, 
to  allow  him,  or,  which  is  the  same  thing,  his  heir,  to  re- 
cover back  the  land  and  keep  the  mone3^  Any  code  of 
law  Avhich  would  tolerate  this  would  seem  to  be  liable  to  the 
reproach  of  being  a  verj'^  imperfect,  or  a  very  inequitable 
one.  We  think  that,  upon  well  established  principles  of 
equity  law,  the  owner  of  the  land  should,  if  he  wishes  to 
get  it  back,  rei)a3'  the  purchase-money  which  he  has  re- 
ceived, or  which  he  will  receive  if  he  gets  the  land.  This 
may  be  done  upon  the  compensation  doctrine  of  courts  of 
e(piity,  with  which,  as  it  is  settled  on  all  hands,  it  is  not 
inconsistent,  if  we  regard  ihe  claim  of  the  owner  under 
such  circumstances,  as  the  Roman  law  treated  it,  as  a  case 
of  fraud  or  ill  faith.  But  whether  this  equity  be  adminis- 
tered under  the  name  of  compensation,  or  by  substituting 

261  Scott  V.  Dunn,  1  Dev.  &  Bat.  Eq.  427. 
26229  Mo.  152. 


VOID    JUDICIAL    SALES,  77 

the  purchaser  in  the  place  of  the  creditors  whose  debts  he 
has  paid,  or  by  giving  him  the  benefit  of  the  mortgage 
which  his  money  has  paid  off,  is  not  material.  The  answer 
put  in  by  the  defendants  should  not  have  been  stricken  out, 
and,  in  order  that  the  answer  may  be  reinstated  and  the 
case  may  be  tried  upon  these  equitable  principles,  the  judg- 
ment is  reversed,  and  the  case  will  be  remanded. "'■^^^ 

Nor  is  the  claim  to  subrogation  confined  to  those  cases 
where  a  mortgage  or  some  other  record  lien  has  been  paid  off 
by  the  sale.  The  estates  of  deceased  persons  are  liable  to  be 
sold  for  the  payment  of  the  debts  of  the  decedents,  whether 
such  debts  are  liens  or  not.  If,  by  a  sale  of  the  lands  of  a 
decedent,  his  debts  are  paid,  and  it  turns  out  that  the  sale 
is  void,  the  purchaser  has  the  right  to  be  subrogated  to  the 
claims  which  he  has,  by  his  purchase,  paid  ;  and  he  has 
also  the  right  to  retain  possession  of  the  property  as  se- 
curity for  the  repayment  of  the  sums  to  which  he  is  entitled. 

The  case  of  Blodgett  v.  Hitt-^  discusses  more  thoroughly 
than  any  other  with  which  we  are  familiar,  the  rights  of 
purchasers  under  void  probate  sales.  AVe  copy  so  much  of 
the  opinion  of  the  court  as  is  devoted  to  this  sul)jcct :  "The 
evidence  on  this  subject  is,  that  the  defendant  bid  off  the 
laud  at  the  administrator's  sale  for  three  hundred  and  sixty- 
five  dollars  ;  that  out  of  this  sum  he  paid  the  Boyd  mort- 
gage, amounting  to  nearly  two  hundred  and  fifty  dollars, 
and  that  he  paid  the  balance  of  the  purchase-money  to  the 
administrator.  The  whole  of  the  purchase-money  was  ap- 
l)lied  to  the  payment  of  the  mortgage,  of  other  debts 
against  the  estate,  and  of  the  expenses  of  administration. 
The  land  in  question  stood  chargcal)le  with  the  payment  of 

sfflValle's  heirs  v.  Fleniing'.s,  20  Mo.  1C4.  .Judf^o  Scott  dissented  in  :i 
vigorous  anfl  wcll-writteu  opinion,  saying,  among  otlicr  things:  "The 
defendants  an-  voinntciTS  and  strangers  in  relation  to  tlie  plaintiHs.  No 
man  can  make  anc^tlicr  liis  debtor  witliout  liis  consent.  Xor  can  any 
man  pay  a  debt  of  anotiier  witliout  his  authority  and  liaini  it  of  lum. 
Tliis  is  an  in){)ortant  jtrinciple  necessary  to  be  preserved,  and  it  is  one 
whicli  lias  liad  its  intlncnce  in  all  cases  in  \vliicli  it  has  liren  involved." 

•-'•■'^JiJ  Wis.  lS-2. 


78  vom  JTrniciAi.  sales. 

such  in ortijf ago  debts  ;iiid  expenses.  The  payments  made  hy 
the  dotVndiint  on  account  of  his  purchase  enured  to  the 
benefit  of  the  owners  of  the  land.  There  is  no  manner  of 
douht  hut  the  defendant  purchased  the  land,  and  paid  his 
money  therefor,  in  perfectly  good  faith,  supposing  that  he 
was  obtaining  the  whole  title  thereto  ;  and  there  is  no  pre- 
tense that  he  had  any  actual  notice  of  the  defect  in  the 
proceedings  before  the  sale  which  invalidates  his  title.  The 
question  then  is,  whether,  under  such  circumstances,  the  de- 
fendant is  entitled  to  be  repaid  the  money  which  he  has  paid 
in  good  faith  to  relieve  the  land  from  incumbrances,  before 
he  can  be  turned  out  of  possession  thereof.  Suppose,  for 
ilhistration,  that  the  liabilities  against  the  estate  of  Pearley 
P.  Blodgett,  after  the  personal  estate  was  exhausted,  were 
just  $365,  for  the  payment  of  which  the  land  which  the  ad- 
ministrator attempted  to  convey  to  the  defendant  was 
chargeable.  The  interest  of  the  heirs  of  Blodgett  in  the 
land  was  precisely  that  sum,  less  than  a  full  and  perfect 
title  thereto.  That  is  to  say,  the  creditors  of  the  intestate 
owned  an  equitable  interest  therein  to  the  amount  of  $365, 
and  the  heirs  were  the  owners  of  the  residue.  Now,  when 
the  defendant,  supposing  in  good  faith  that  he  was  thereby 
obtaining  a  title  to  the  lands,  paid  those  debts  and  took  a 
conveyance  of  the  land  from  the  administrator,  and  when 
it  turns  out  that,  by  reason  of  the  failure  of  the  administra- 
tor to  perform  and  fulfill  an  essential  pre-requisite  to  a  valid 
sale,  the  defendant  gets  no  title  by  such  conveyance,  and 
the  heirs  recover  the  land,  it  must  be  admitted  that  there 
is  no  justice  in  giving  the  land  to  heirs,  cleared  of  the  in- 
cumbrances which  the  defendant  has  paid,  without  requiring 
them  to  repay  the  sums  thus  paid  by  him  for  their  benefit. 
Otherwise,  the  heirs  would  recover  a  greater  interest  in  the 
land  than  they  inherited,  by  the  sum  $365,  and  the  defend- 
ant would  be  out  of  pocket  to  that  amount,  paid  by  him  for 
their  benefit.  The  fact  that  the  purchase-money  paid  by 
the  defendant  only  cancelled  a  small  per-centage  of  the  in- 
debtedness against  the  estate,  does  not  change  the  principle. 


VOID    JUDICIAL    SALES.  79 

But  the  question  is  not  alone — what  is  the  natural  and  inhe- 
herent  justice  of  the  case?  but  it  is — are  the  principles  and 
rules  of  equity  jurisprudence,  as  recognized  and  enforced  by 
courts  of  equity,  sufficiently  broad  and  comprehensive  to 
reach  the    case    and  compel   the  heirs  to  repay   the  sums 
which  the  defendant  has  thus  paid  for  their  benefit,  before 
they   will  be  permitted  to  take  possession  of  the  land  in 
controversy?     We  are  of  the  opinion  that  this  latter  ques- 
tion must  be  answered  in  the  affirmative,  both  upon  prin- 
ciple and  by  authority.     A  brief  reference  will  be  made  to 
a  few  of  the  leading  cases  wherein  it  has  been  so  held. 
"  Hudgin  V.  Hudgin,^was  a  case  where  a  person,  by  will, 
charged  his  lands  with  the  payment  of  his  debts.     After  his 
death,  a  creditor  procured  an  order  from  the  proper  court  for 
the  sale  of  some  portion  of  the  lands  thus  made  chargeal)le 
with  the  de])ts  of  the  testator.     The  lands  were  sold,  and  the 
proceeds  applied  to  the  payment  of  such  debts.    The  sale  and 
conveyance,  executed  pursuant  thereto,  were  subsequently 
held  void,  and,  in  ejectment  brought  by  some  of  the  devisees 
of  the  land  against  the  purchaser  at  such  sale,  or  the  person 
claiming  under  him,  the  devisees  recovered  judgment.     The 
defendant  in  the  ejectment  filed  his  bill  in  equity,  and  obtained 
an   injunction  restraining  proceedings  upon  such  judgment, 
and,  upon  proof  of  these  facts,  the  Court  of  Appeals  of  Vir- 
ginia directed   a  decree   declaring  the  purchase-money,  so 
paid  by  the  complainant  or  his  grantor,  on  such   void  sale, 
and  the  interest  thereon,   after    deducting   therefrom    the 
rents   and  profits  of  the   land  while  occupied  by  the  i)ur- 
chascr  or  his  grantee  (exclusive  of  improvements  made  by 
them  respectively),  to   be  a  charge   on  the  land,  and  pro- 
viding that,  unless  the  same  should  be  paid  by  the  devisees 
within  a  reasonable  time,  the  land   ])e  sold   for  the  satisfac- 
tion  thereof  on   terms  to   l)e  prescribed   for  th(!  ])urpose. 
Tiiis  case  is  decided  upon  the  principles,  that  the  punhascu-, 
whose  money  has  paid  the  incumbrances  upon  the  land,  has 
the  right  to   be   substituted  to   the  rights   of  the  credil^)r 

2M  8  Grattan,  320. 


whose  (k'l)t  hv  has  paid  ;  and,  hecause  0(|uity  will  not  per- 
mit sufh  creditor  or  iiu'unibraiicer,  lawfully  in  possession, 
to  he  disturhed  therein  until  his  debt  or  incumbrance  is 
fully  satisfied,  it  will  not  permit  such  i)urchaser,  who  has 
})aid  the  incumbrance  in  good  faith,  and  is  thcre])y  subro- 
gated to  the  rights  of  the  creditor,  to  be  dispossessed  until 
he  is  reimbursed  for  the  mone3^s  so  paid  by  him. 

*'  Valle's  Heirs  v.  Fleming's  Heirs,^^'^  is  to  the  same  effect. 
This  is  a  very  important  and  interesting  case  and  will  jus- 
tify a  somewdiat  extended  notice.  The  action  was  in  the 
nature  of  ejectment.  The  jjlaintiffs  claimed  as  heirs  of 
Valle,  who  died  seized  of  the  lands  in  controversy  in  the 
action.  The  defendants  w^ere  in  possession  under  certain 
conveyances,  executed  to  their  ancestor  and  his  grantors  by 
the  administrators  of  the  estate  of  Valle,  pursuant  to  a 
sale  of  the  land  under  an  order  of  the  proper  court.  In  a 
former  litigation,  these  conve3'ances  had  been  adjudged  to 
be  null  and  void  by  the  Supreme  Court  of  Missouri.  In 
their  answer  the  defendants  alleged,  as  an  equitable  defense 
and  counter-claim,  that  their  ancestor  and  his  grantors  pur- 
chased the  lands  in  good  faith,  and  paid  therefor  $50,000, 
which  moneys  the  administrators  applied  to  the  payment 
and  satisfaction  of  a  mortgage  upon  said  lands,  and  perhai)S 
other  lands  of  which  Valle  died  seized.  The  defendants 
claimed  that,  notwithstanding  the  apparent  and  technical 
payment  and  extinguishment  of  such  mortgage,  equity 
would,  under  the  circumstances,  treat  it  as  still  subsisting 
and  unsatisfied,  for  the  protection  of  the  purchasers  from 
the  administrators,  or  their  grantees,  and  would  subrogate 
such  purchasers  or  grantees  to  all  of  the  rights  of  the  mort- 
gagee, treating  them  as  assignees  and  purchasers  of  the 
mortgage  for  a  valua])le  consideration  by  them  paid.  They 
also  claimed  that  they  were,  in  fact  and  in  equity,  in  pos- 
session of  the  land  in  controversy  as  assignees  of  said 
mortgage,  and  fully  entitled  to  set  up  the  same  against  any 
person  attacking  their  rights  or  possession  thereto.  The 
court  below  rejected  these  views  of  the  case,  and  struck  out 

2'J6  2ri  Mo.  152. 


VOID    JUDICIAL    SALES.  81 

from  the  answer  such  equitable  defense  and  counter-claim  ; 
but  the  supreme  court  reversed  the  judgment  below  for  that 
reason,  and  in  a  very  able  opinion  by  Judge  Napton,  a  ma 
jority  of  the  court  fully  sustain  the  theory  of  the  defend- 
ants, that  they  were  entitled  to  the  equitable  protection  of 
the  court  as  mortgagees  in  possession  under  an  unpaid 
mortgage,  and  that  their  possession  could  not  be  disturbed 
until  an  account  should  be  taken,  and  the  sum  ascertained 
to  be  equitably  due  to  them  on  the  mortgage,  fully  paid.  In 
that  case  Judge  Scott  delivered  a  dissenting  opinion,  wherein 
he  claims  that  the  views  of  the  majority  of  the  court  are 
unsustained  by  the  cases  ;  that  the  decision  creates  a  new 
equity,  or  rather  injects  a  new  principle  into  the  equity 
jurisprudence  of  the  country ;  and  further,  that  the  de- 
fendant's ancestor  and  his  grantors,  who  paid  their 
money  under  a  void  sale  and  conveyance,  were  mere 
volunteers ;  and,  because  a  man  may  not  pay  the  debt 
of  another  without  his  authority  and  claim  it  of  him, 
the  learned  judge  concludes  that  the  defendants  (who  had 
succeeded  to  all  of  the  rights  of  the  original  purchasers) 
could  not  be  subrogated  to  the  rights  of  the  mortgagee,  and 
recover  of  the  heirs,  or  out  of  the  land,  the  money  which 
was  thus  voluntarily  paid  on  a  void  conveyance.  It  is  be- 
lieved that  both  these  positions  are  untenable.  That  this  is 
no  new  equity — one  first  recognized  and  asserted  in  that 
case — is  abundantly  shown  by  a  reference  to  the  cases  cited 
in  the  majority  opinion.  Some  of  these  cases  will  be  here- 
inafter mentioned.  Again,  the  lands  having  been  purchased 
of  the  administrator  in  good  faith,  and  at  a  sale  wliich  had 
been  ordered  to  be  made  by  the  proper  court,  and  the  pur- 
chasers having  paid  a  valuable  consideration  for  the  land,  in 
the  belief  that  they  were  obtaining  a  good  title  thereto,  it 
can  not  1)C  said,  in  any  reasonable  or  just  sense,  that  they 
were  mere  volunteers.  On  the  contrary,  they  paid  their 
money  atth(;  request  and  by  the  procurement  of  tlie  admin- 
istrators ;  and,  inasmuch  us  the  administrators  were  charged 
by  law  with  the  duty  of  converting  the  assets  and  j)avin<' 
6  ' 


82  VOID    JUDICIAL    SALES. 

the  debt,  it  may  well  !)0  held  that  they  were  the  represent- 
atives of  the  heirs  lo  llie  extent  that  the  hitter  should  ho 
hekl  hound  by  sueh  recjuest,  and  should  not  be  heard  to  al- 
lege that  (he  pnrehasers,  whose  money  went  to  pay  the  in- 
eumbranee  upon  the  land,  were  mere  volunteers.  The 
judure  also  speaks  of  the  distinetion  between  trusts  and 
powers,  and  says  that  beeause  the  administrators  have  noth- 
int"^  but  a  mere  j)ower,  without  an  interest,  the  land  can 
not  be  alfeeted  by  their  conveyance  thereof,  unless  the 
power  is  executed  pursuant  to  the  terms  of  the  statute  by 
which  it  is  conferred.  In  this  the  learned  judge  is  doul)t- 
less  correct,  as  he  would  have  been  had  he  said  further,  that 
where,  as  in  that  case,  a  power  is  created  by  law,  e(piity 
will  not  relieve  against  a  defective  execution  of  it.  Rut 
the  result  of  these  principles  is  not  that  a  purchaser  in  good 
faith  at  an  administrator's  sale  is  not  entitled,  in  a  case 
where  the  conveyance  to  him  has  been  adjudged  void,  to  be 
repaid  by  the  heir,  or  out  of  the  land,  the  money  paid  by 
him  for  such  void  conveyance,  and  applied  in  payment  and 
satisfaction  of  incumbrances  upon  the  estate  ;  but  only  that 
the  power  having  been  defectively  executed,  the  conveyance  is 
void,  and  a  court  of  equity  has  no  jurisdiction  or  authority  to 
heal  the  defect  and  make  it  valid. 

"  The  foregoing  case  was  decided  mainly  upon  the  authority 
of  the  case  of  Bright  v.  Boyd.-*^^  This  is  perhaps  the  lead- 
ing case  on  the  question  under  consideration.  Boyd,  the  de- 
fendant, had  recovered  judgment  in  an  action  of  ejectment 
for  certain  premises  in  the  possession  of  Bright,  the  com- 
plainant, whereui)on  Bright  tiled  his  bill  in  equity  against 
Boyd,  alleging  that  he  was  in  possession  of  the  premises  in 
controversy,  by  intermediate  conveyances  from  the  adminis- 
trator with  the  will  annexed  of  the  estate  of  John  P.  Boyd, 
the  father  of  defendant,  but  that  the  title  under  the  adminis- 
trator's deed  had  failed,  or  rather,  that  the  same  conveyed  no 
title  by  reason  of  the  failure  of  the  administrator  to  comply 
with  certain  requirements  of  the  law,  which  were  held  to  be 
essential  to  the  validity  of  the  sale  ;  and  that  the  complain- 

•^67  1  Story,  478,  and  2  lb.  GO.J. 


VOID    JUDICIAL    SALES.  83 

ant,  or  those  under  whom  he  cLiimed,  in  good  faith,  and 
believing  that  the  deed  from  the  administrator  conveyed  a 
good  title  to  the  premises,  had  made  valuable  and  perma- 
nent improvements  thereon.      The  object  of  the  bill  was  to 
make  the  value  of  such  improvements  a  charge  upon,  and 
to  enforce  payment  therefor  out  of  the  premises  which  the 
defendant  had  recovered  in  the  ejectment  suit.    The  defend- 
ant, Boyd,  made  title  to  the  land  as  devised  under  the  will 
of  his  father.      On  proof  of  these  allegations,  Mr.  Justice 
Story,  before  whom  the  cause  was  heard,  after  great  deliber- 
ation and  research,  gave  the  complainant  the  relief  prayed 
in  the  bill,  and,  in  the  absence  of  any  statutory  provision 
on  the  subject,  held  the  broad  doctrine  that  '  a  bona  Jide 
purchaser  for  a  valuable   consideration,  without  notice  of 
any  defect  in  his  title,  who  makes  improvements  and  melio- 
rations upon  the  estate,  has  a  lien  or  charge  thereupon  for 
the  increased  value  wdiich  is  thereby  given  to  the  estate  be- 
yond its  value  without  them,   and   a  court  of  equity  will 
enforce  the  lien   or  charge  against  the   true   owner,   who 
recovers  the  estate  in  a  suit  at  law  against  the  purchaser.' 
"The  principle  there  asserted  is  precisely  the  same  as  that 
involved  in  the  question  under  consideration  in  this  case. 
In  both  cases,  if  the  land  is  held  chargeable,  it  is  because 
the  money  of  the  purchaser  under  the  void  sale  has  been 
paid  in  good  faith,  and  expended  to  increase  the  value  of  the 
estate.    It  is  quite  immaterial  whether  this  was  done  by  pay- 
ing otf  incumbrances,  or  by  making  permanent  and  valuable 
improvements.      In  either  case,  the  value  of  the  inheritance 
is  increased  by  the  ex[)enditure,  and,  as  already  observed, 
the  plainest  [)rinciplos  of  justice  demand  that  the  heir  or 
devisee  should  repay  the  money  thus  innocently  expended 
for   his   benefit,  to   the  extent   that  he   has   been  benclitcd 
therebv.     'I'he  opinion  of  rJudge  Story  in  liright  v.  Boyd  is 
exceedingly  learned  and   able,  and   will   well  repay  careful 
perusal  and  study.    He  traces  the  principle  which  he  apj)Iied 
there  to  the  Roman  law,  and  shows  that  it  has  been  adopted 
into  the   laws   o^    all    modern   nations   which    derive    their 


N4  void    -Jl'DlCIAL    SALES. 

jiiiis})rudonce  from  tlio  Koniiin  law,  and  demonstrates,  by 
rofcrenco  to  the  writinjrs  of  Cujacius,  Pothior,  Grotius,  Roll, 
I'uirondorf,  Kutherforth,  and  others,  and  by  ar<2:nmcnts 
whieli  seem  conclusive  of  the  question,  that  ♦  such  principle 
has  the  highest  and  most  persuasive  equity,  as  well  as  com- 
mon sense  and  common  justice,  for  its  foundation.'  We 
are  not  aware  that  the  authoiity  of  that  case  has  ever  been 
shaken,  or  its  correctness  ever  successfully  assailed. 

"  Before  dismissing  the  case  of  Bright  v.  Boyd  from  our 
consideration,  I  may  be  permitted  to  transcribe  a  passage 
from  the  opinion,  to  show  how  identical  in  princ-iple  that  case 
is  with  the  present  one,  and  also  to  show  the  views  of  the 
eminent  jurist  wdio  wrote  the  opinion,  upon  the  precise 
question  involved  in  this  case.  Judge  Story  there  says  that 
'  it  can  not  be  overlooked  that  the  lands  of  the  testator,  now 
in  controversy,  were  sold  for  the  payment  of  his  just  de])ts, 
under  the  authority  of  law,  although  the  authority  was  not 
regularly  executed  by  the  administrator  in  his  mode  of  sale, 
by  a  non-compliance  with  one  of  the  prerequisites.  It  was 
not,  therefore,  in  a  just  sense,  a  tortious  sale  ;  and  the  pro- 
ceeds thereof,  paid  by  the  purchaser,  have  gone  to  discharge 
the  debts  of  the  testator,  and  so  far  the  lands  in  the 
hands  of  the  defendant  (Boyd)  have  been  relieved  from  a 
charge  to  which  they  were  liable  by  law.  So  that  he  is  now 
enjoying  the  lands  free  from  a  charge  which,  in  conscience 
and  equity,  he,  and  he  only,  and  not  the  purchaser,  ought  to 
bear.  To  the  extent  of  the  charge  from  which  he  has  thus 
been  relieved  by  the  purchaser,  it  seems  to  me  that  plaintiff, 
claiming  under  the  purchaser,  is  entitled  to  reimbursement, 
in  order  to  avoid  circuity  of  action,  to  get  back  the  money 
from  the  administrator,  and  thus  subject  the  lands  to  a  new 
sale,  or  at  least,  in  his  favor,  in  equity  to  the  old  charge. 
I  confess  myself  to  be  unwilling  to  resort  to  such  a  circuity 
in  order  to  do  justice,  where,  upon  the  principles  of  equity, 
the  merits  of  the  case  can  be  reached  by  affecting  the  lands 
directly  with  a  charge  to  which  they  are  ex  aequo  et  bono 
in  the  hands  of  the  present  defendant,  clearly  liable.*^** 

K81  Story,  493. 


VOID    JUDICIAL    SALES.  85 

*♦  After  "what  has  been  ah'eady  said  concerning  the  rule  of 
the  civil  hiw  on  this  subject,  we  should  expect  to  tind  the 
courts  of  Louisiana  asserting  and  enforcing  that  rule.  Ac- 
cordingly, we  tind  in  Dufour  v.  Camfranc,'^  the  following 
language :  '  It  has  been  proved  that  the  proceeds  arising 
from  the  sale  of  the  slaves  were  applied  to  the  discharge  of 
the  judgment  debts  of  the  plaintiff,  and  the  court  is  of 
opinion  that  he  can  not  recover  in  the  suit  until  he  repay 
that  money.  *  *  *  Nothing  could  be  more  unjust  than  to 
permit  a  debtor  to  recover  back  his  property  because  the 
sale  was  irregular,  and  yet  allow  him  to  profit  by  that  irreg- 
ular sale  to  pay  his  debts.'  It  will  be  readily  inferred 
from  the  fore^oini;  extracts,  that  the  action  was  brought  to 
recover  certain  slaves  which  the  defendant  had  purchased 
at  a  sheriff's  sale  upon  an  execution,  which  sale,  it  Avas  after- 
wards held,  was  void  and  transferred  no  title  to  the  slaves  to 
the  purchaser,  but  the  proceeds  of  the  sale  went  to  pay  judg- 
ment debts  against  the  plaintiff.  *  *  *  We  hold,  therefore, 
that  the  whole  purchase-money  paid  by  the  defendant  for 
the  land  in  controversy,  and  the  interest  thereon,  less  the 
mesne  protits  of  the  land  (exclusive  of  the  improvements 
placed  thereon  by  him)  during  his  occupancy  thereof,  is  a 
lien  and  charge  upon  the  land,  and  that  the  plaintiffs  can 
not  have  restitution  of  the  land  claimed  by  them  until  the 
amount  of  such  lien  and  charge  is  paid.""^*^ 

369  11  Martin,  007.  (2  Cond.  T.:i.  Reports.  243.) 

270Blodgctt  V.  Ilitt,  2!J  Wis.  182.  The  foUowiiii^  cases  are  in  harmony 
with  the  one  just  cited:  Brif^ht  v.  Boyd,  2  Story  C  C.  605;  Mohr  t. 
Tulip,  40  Wis.  (JO;  Grant  v.  Lloyd,  12  S.  &  M.  lltl ;  Lovy  v.  Riley,  4  Ore- 
gon, 392;  Chanibers  v.  Jones,  72  111.  27.");  Sliort  v.  Porter,  44  Miss.  533; 
Williamson  v.  Williamson,  3  S.  &  M.  715;  iJouj^lass  v.  Bennett, 
51  Miss.  680;  IIud<?in  v.  irn(l.<,nn,  0  r,ratt.  320;  Winslow  v.  Crowell, 
32  Wis.  039;  Dunbar  v.  Creditors,  2  J^a.  An.  727;  Stockton  v.  Dow- 
ney, G  La.  An.  .581;  Ra;;land  v.  Green,  14  S.  &  M.  194.  "If  the 
sale  he  void,  or  voidable,  the  lien  of  the  administrator  continues; 
and  it  would  seem  equitable  that  the  purchaser,  who  has  paid  the 
debts  of  the  estate,  should  have  a  lien  on  the  estate  for  his  purchase- 
money."  Ilaynes  v.  Meeks,  10  T'al.  110.  A  purchaser  has  no  claim 
against  the  heirs,  nor  their  estate,  fur  purchase-money  which  he  fails  to 
show  has  been  applied  for  their  benelit.    .layne  v.  Boisgerard.  39  Miss.  706. 


8(>  VOID    .lUDICIAI-    SALES. 

Skc.  ;")2.  lii'j/if  to  Subrogation,  when  Purchaser  is  Guilty 
of  Fraud. — It  is  ;i  funiiliiir  i)riiiciple  thut  whoever  seeks 
equity  must  conic  with  ck^au  hands.  Nearly  all  the  cases 
in  which  rolici'  has  been  granted  to  purchasers  at  void  sales 
have  proceeded  upon  the  express  ground  that  the  purchaser 
had  acted  in  good  faith,  and  in  ignorance  of  the  irregularity 
by  which  his  title  was  impaired.  Certainly  in  all  such  cases 
the  purchaser's  good  faith  ought  to  be  regarded  as  material. 
In  Pennsylvania,  if  a  purchaser  be  guilty  of  a  fraud,  on 
account  of  which  his  purchase  is  adjudged  void,  he  can  not 
reclaim  his  purchase  money.  He,  in  effect,  forfeits  it  to 
those  whom  he  sought  to  defraud,  for  they  may  retain  the 
money  and  recover  the  estate. "^'^  In  Mississi})pi,  on  the 
other  hand,  a  fraudulent  purchaser  may  assert  the  same 
equities  as  one  who  has  acted  in  good  faith. '■"- 

Sec.  53.  Purchaser  s  Right  to  the  Aid  of  Equity  in  Sup- 
plying Omissions  and  Mistakes. — In  every  case  wdiere  a 
purchaser  has  in  good  faith  made  and  complied  with  his 
bid,  his  equities  are  of  a  very  persuasive  character,  and 
usually  appeal  to  our  sense  of  justice  more  strongly  than 
the  equities  of  him  who  seeks  to  avoid  the  sale  without 
placing  the  purchaser  in  statu  quo.  In  many  cases  it  is 
a[iparent  that  the  vice  which  renders  the  sale  a  nullity  has 
not,  in  fact,  operated  to  the  detriment  of  him  whose  prop- 
erty was  sold.  All  the  parties  may  have  supposed  the  pro- 
ceedings to  be  regular ;  the  biddings  may  have  been 
S[)irited  ;  the  price  realized  may  have  equalled  or  perhaps 
exceeded  the  value  of  the  property;  the  proceeds  of  the 
sale  may  have  all  been  applied  in  the  manner  directed  hj 
law  ;  and  still  some  act  or  omission,  unnoticed  at  the  time, 
may  render  the  pin-chaser's  title  utterly  void  at  law.  In 
such  a  case  our  sense  of  justice  revolts  at  the  thought  that 
he  may  be  without  redress.  We  naturally  expect  that 
equity  will   interpose   to   supply  the   omission,  or  that,  on 

27iMcCa8k«\v  V.  Graff,  2!?  Pa.  8.  :521 ;  Gilbert  v.  Hoffman,  2  Watt^,  66; 
•Tackson  v.  Summerville,  13  Pa.  S.  359. 
:!7-' Grant  v.  Llo)'rl,  12  S.  &  M.  191. 


VOID    JUDICIAL    SALES.  87 

such  terms  as  may  be  just,  it  will  enjoin  the  parties  in 
interest  from  availing  themselves  of  an  error  which  clearly 
has  not  impaired  their  rights.  But  on  seeking  relief,  we 
are  at  once  confronted  with  the  reminder  that,  "  in  cases  of 
defective  execution  of  powers,  we  are  carefully  to  distin- 
guish between  powers  which  are  created  by  private  parties, 
and  those  which  are  specially  created  by  statute  ;  as,  for 
instance,  powers  of  tenants  in  tail  to  make  leases.  The 
latter  are  construed  with  more  strictness,  and,  whatever 
formalities  are  required  by  the  statute,  must  be  punctually 
complied  with,  otherwise  the  defect  can  not  be  helped,  or, 
at  least,  may  not,  perhaps,  be  helped  in  equity ;  for  courts 
of  equity  can  not  dispense  with  the  regulations  prescribed 
by  statute  ;  at  least,  where  they  constitute  the  apparent 
policy  and  object  of  the  statute."^"  Perhaps  this  language, 
owiug  to  the  author's  timidity  of  expression,  may  not  nec- 
essarily dispose  of  the  purchaser's  claim  for  relief.  The 
other  authorities  are  more  decisive,  es])eeially  with  regard 
to  execution,  judicial  and  probate  sales.  Thus,  in  a  case 
decided  l)y  Judge  Story,  it  appeared  that  an  administrator's 
sale  had  been  regularly  licensed,  and  that  all  the  require- 
ments of  the  statute  had  been  respected,  save  that  requiring 
a  bond  to  be  given  and  approved  prior  to  the  sale.  The 
judge,  in  his  opinion,  said  :  "  Upon  this  case  coming  out  on 
the  trial  oi'  the  action  at  law  (a  writ  of  entry)  the  court 
hehl  that  the  giving  of  the  bond  was  by  law  an  essential 
prerequisite  to  the  sale,  and,  it  not  having  been  complied 
with,  the  sale  was  consequently  invalid,  and  passed  no  title 
to  the  purchaser.  It  is  now  argued  that,  however  correct 
this  doctrine  may  be  at  law,  yet,  in  a  court  of  equity,  tiie 
omission  to  give  the  bond  within  a  stipulated  time  ought 
not  to  be  liehl  a  fatal  defect,  but  it  should  l)e  treated  as  a 
mistake,  or  inadvertence,  or  accident  |)rop(M-ly  reni('(lial)h'  in 

273 story's  Eq.  Jiir.  sec.  W,.  See  lb.,  sec.  177;  1  Lead.  Cas.  in  Kq.,  4tli 
Am.  Ed.  o79;  Freeinan  on  Executions,  sec.  332;  Ticrinm  v.  Hcam,  2  Oh. 
46.");  Ware  v.  .foliiison,  .").')  Mo.  .")0():  Moreau  v.  IJranliaiii.  27  Mo  iJ.'il  ; 
McIJi-yde  v.  Wilkiiinon,  21»  Ala.  002. 


88  VOID    JUDICIAL    SALES. 

a  court  of  equity.  We  do  not  think  so.  The  mistake  was 
a  vohiutary  omission,  or  neglect  of  duty,  and  in  no  just 
sense  an  accident.  But,  if  it  were  otherwise,  it  would  bo 
difficult  in  the  present  case  to  sustain  the  argument.  This 
is  nf)t  the  case  of  the  defective  execution  of  a  power  created 
by  the  testator  himself,  but  of  a  power,  created  and  regu- 
lated by  statute.  Now,  it  is  a  well  settled  doctrine  that, 
although  courts  of  equity  may  relieve  against  the  defective 
execution  of  a  power  created  by  a  party,  yet  they  can  not 
relieve  against  the  defective  execution  of  a  power  created 
by  law,  or  dispense  with  any  of  the  formalities  required 
thereby  for  its  due  execution  ;  for  otherwise  the  whole  policy 
of  the  legislative  enactments  might  be  overturned.  There 
may,  perhaps,  be  exceptions  to  this  rule  ;  but  if  there  be, 
the  present  case  does  not  present  any  circumstances  which 
ought  to  take  it  out  of  the  general  rule.  Therefore  it  seems 
to  us  that  the  non-compliance  with  the  statute  prerequisites, 
in  the  present  case,  is  equally  fatal  in  equity  as  it  is  in 
law.'"^^" 

In  Illinois,  certain  heirs  recovered  a  judgment  in  eject- 
ment for  lands  purchased  at  a  guardian's  sale.  The  defect 
in  the  purchaser's  title  was  the  omission  of  the  guardian  to 
report  the  proceedings  under  the  order  of  sale.  The  pur- 
chaser then  tiled  a  bill  to  enjoin  the  execution  of  the  judg- 
ment in  ejectment,  and  for  general  relief.  The  supreme 
court  decided  that  the  bill  must  be  dismissed.  Caton,  J., 
in  delivering  the  opinion  of  the  court,  considered  and  ap- 
proved the  views  expressed  by  Judge  Story  in  his  Commen- 
taries, and  also  in  Bright  v.  Boyd,  both  of  which  have  been 
quoted  in  this  section.  He  further  said  :  "If  chancery  may 
interfere  and  dispense  with  one  of  the  requirements  of  the 
statute,  it  may  with  another,  and  thus  in  its  unlimited  dis- 
cretion it  may  fritter  away  the  whole  statute.  It  is  seri- 
ously claimed  that,  because  the  purchaser  purchased  in 
good  faith  and  paid  the  full  value  of  the  property  to  the 
guardian  of  the  owners,  thereby  an  equity  is  raised  in 
'^*  Bright  V.  Boyd,  1  Story  C.  C.  486. 


VOID    JUDICIAL    SALES.  89 

his  favor  and  against  them,  which  the  court  will  enforce. 
Equities  do  not  arise  upon  statutory  acts  without  the  voli- 
tion of  those  against  whom  the  equity  is  charged.  Suppose 
this  guardian,  seeing  that  a  case  existed  which  would  re- 
quire the  circuit  court  to  order  a  sale  of  the  infant's  estate, 
and  in  ignorance  of  the  law,  but  in  all  honesty,  had  sold 
the  estate  for  its  full  value,  without  an  order  of  court,  to  a 
purchaser  who,  in  good  faith,  supposed  he  was  getting  a 
good  title  ;  in  that  case  the  purchaser's  equity  would  be 
just  as  strong  as  is  the  equity  in  this  case ;  and,  should  we 
now  hold  that  the  purchaser  here  acquired  an  equitable  title 
which  should  ])e  enforced  against  the  heir,  it  would  be  equally 
our  duty,  when  the  supposed  case  arises,  to  compel  a  con- 
veyance to  the  purchaser  ;  and  then  the  entire  statute  would 
be  gone.  But  the  truth  is,  the  purchaser  at  these  statutory 
sales  gets  no  imperfect  equital)le  title  which  may  be  per- 
fected in  chancery  ;  he  gets  the  whole  title  which  the  infant 
had,  or  he  gets  no  title  whatever."  ■'" 

As  equity  will  not  supply  an  act  omitted  inadvertently 
or  otherwise,  so  it  Avill  not  correct  a  mere  mistake,  nor  re- 
lieve the  purchaser  from  the  consequences  of  a  mistake. 
Thus,  if  by  mistake  part  of  a  tract  intended  to  be  embraced 
in  an  order  of  sale  is  omitted  therefrom,  or  if  a  tract  alto- 
gether dillerent  from  the  one  intended  is  inserted  therein, 
and  the  error  passes  unnoticed  until  after  the  sale,  equity 
can  not  relieve  the  purchaser  nor  give  him  the  tract  which 
he  sui)po8ed  he  was  buying  and  which  the  administrator  or 
other  officer  intended  to  sell.'^'^  In  Iowa,  this  rule  seems  to 
be  ignored.  A  judgment  was  entered  in  that  state  for  the 
saU^  of  a  f)art  of  several  lots  of  land.  From  the  execution 
and  other  proceedings  su!)sequent  to  judgment,  one  of  these 
lots  was  omitted.  After  the  sale  and  delivery  of  the  deed, 
the  purchaser  disccjvcrcd  the  omission,  liy  a  })roceeding  in 
equity,  he  succeeded  in  setting  aside  the  .sale  ai\d  the  satis- 
faction   of  the    judgMRMit  thereby    produced,   and    obtaine«l 

'-^6  YoiiDf,'  V.  Dowlinfj,  in  III.  481,  485. 

^'Diikf-y  V.  Bf'utfy,  14  Oh.  St.  ;{89;   M.ili:iii  v.  K»'(!ve,  G  IJIackf.  215; 
Ward  V.  Brewer,  11)  111.  2:tl  ;  Rogers  v.  Abbott,  :<7  Iiul.  UH. 


^0  VOID    JUDICIAL    SALES. 

U'livo  to  iijsiie  a  new  oxoiHitioii  in  oonforniity  willi  his 
judi^inciit.*"  This  case,  it  will  be  seen,  did  not  validate  a 
void  sale.  It  did,  however,  give  relief  whic;h  nltiniately 
l)roved  as  eiloctual  ;  for  it  gave  the  right  to  make  a  sale  of 
property  which  had  not  been  sold  at  all. 

While  equity  will  not  usually  aid  the  defective  execution 
of  a  statutory  power,  we  judge  that  this  rule  can  not  prevail 
where  all  the  prerequisites  prescribed  by  law  have  been 
observed,  but  the  purchaser  has  either  received  no  convey- 
ance or  one  which  is  not  such  as  he  is  entitled  to  receive. 
In  this  case,  the  parties  whose  property  was  sold  will  be 
enjoined  from  availing  themselves  of  the  omission,^^^  or  the 
officer  will  be  compelled  to  perform  his  duty  by  executing 
a  conveyance  in  proper  form.'^"'* 


CHAPTER  VI. 


THE  CON^STITIITIONALITY  OF  CURATIVE  STATUTES. 

Section  54.  Curative  Statutes  upheld  by  Supreme  Court  of  United  States. 
Sec.  5.5.  Curative  Statutes  coutirming  Irregular  Judicial  Proceedings. 
Sec.  5G.  Curative  Statutes  confirming  Void  Judicial  Proceedings. 
Sec.  .57.  Defects,  other  than  Jurisdictional,  which  are  pronounced  In- 
curable. 
Sec.  58.  Informalities  which  may  be  Waived  by  Subsequent  Statutes. 
Sec.  59.  Limitation  on  Effect  of  Curative  Statutes. 
SEC.  GO.  General  Ileflections  concerning  Curative  Statutes. 

Sec.  54.    Curative  Statutes  upheld  by  Supreme  Court  of 
United  States. — Numerous  statutes  have  been  enacted,  pro- 
fessing to  validate  judicial  sales   and    proceedings   which, 

277  Snyder  v.  Ives,  42  la.  157. 

278  vVortinau  v.  Skinner,  1  Beas.  .358;  De  Riemer  v.  De  Cantillon,  4 
Johns.  Ch.  85. 

279,lelks  V.  Barrett,  .52  Miss.  315;  Stewart  v.  Stokes,  33  Ala.  494;  Free- 
man on  Ex.,  sec.  332.  Probably  a  sheriff's  deed  may  be  reformed  in 
equity  in  Indiana  and  New  York.  Johns  v.  DeRome,  5  Blackf.  421 ;  Bart- 
lett  V.  .ludd,  21  X.  Y.  200.  Deeds  of  commissioners  and  administrators 
may,  in  certain  cases,  be  reformed  by  equitable  actions  in  Missouri. 
Houx  V:  County  of  Bates,  61  Mo.  391;  Grayson  v.  Weddle,  G3  Mo.  523. 


VOID    JUDICIAL    SALES.  91 

without  the  aid  of  such  statutes,  were  unquestionably  inop- 
erative, both  at  law  and  in  equity.  Such  statutes  are  clearly 
retrospective.  They  also  take  at  least  the  legal  title  away 
from  its  owner  and  vest  it  in  another  person,  without  due 
process  of  law.  They  usuallj^,  if  not  universally,  do  even 
more  than  this  ;  for  they  give  force  to  titles  which  are  not  less 
void  in  equity  than  at  law.  They  have,  therefore,  been 
questioned  as  conflicting  with  express  constitutional  pro- 
visions, and  also  as  violating  some  principles  which,  even 
without  any  direct  constitutional  exi)rcssion,  must  be  admit- 
ted to  prevail  under  every  civilized  form  of  government.^^ 

We  shall  first  call  attention  to  a  case  which,  as  it  arose  in 
a,  State  then  having  no  constitution,  may  perhaps  be  ac- 
cepted as  an  authoritative  determination  of  this  question, 
wliere  it  is  to  be  answered  solely  from  the  Constitution  of 
the  United  States,  as  that  instrument  stood  before  the 
adoption  of  the  14th  Amendment.  Jonathan  Jenckes  died 
in  New  Hampshire,  leaving  a  will  which  was  there  admitted 
to  prol)ate.  The  executrix  obtained  a  license  of  the  judge 
of  probate  in  New  Hampshire,  purporting  to  authorize  her 
to  sell  lands  in  Rhode  Island.  Under  this  license,  she  sold 
and  conveved  lands  in  the  last  named  State.  The  sale  was 
confessedly  void,  because  the  courts  of  New  Hampshire  had 
no  jurisdiction  over  lands  situate  in  another  State.  She 
made  an  application  to  the  legislature  of  Rhode  Island, 
stating  the  facts  in  her  petition,  and  thereupon  an  act  was 
j)assed,  at  the  June  session  of  1792,  ratifying  and  confirni- 
iug  the  title  ])ased  on  her  sales  and  conveyances. 

In  determiniug  the  constitutionality  of  this  act,  Mr.  Justice 
Story,  delivering  the  opinion  of  the  Supreme  Court  of  the 
United  States,  said  :  "  Rhode  Island  is  the  only  State  in  the 
Union  which  has  not  a  written  constitution  of  government,  con- 

2*>  For  ail  .•iiiininciatioii  of  tlif  ruin  thai  tlu'rc  iiiiisl  necessarily  ha  8ome 
restraints  ii|)<)n  je^^jislalive  authority  in  every  fretr  and  eivilizcMj  country, 
independent  of  direct  constitutional  proliiliilions  and  assurances,  see 
Calder  v.  liull,  3  Dall.  iJSfJ;  Wilkinson  v.  Iceland,  2  Pet.  (ioS;  I.oan  Asso- 
ciation V.  Topeka.  20  AVall.  m\\\  Story  on  the  Const.,  sec.  ]:$:)!). 


92  VOID    JUDICIAL    SALES. 

tainiiii::  its  fundanu'nlal  laws  and  institution.s.  Until  the 
revolution  in  177(5,  it  was  governed  by  the  charter  granted 
by  C^liarles  H.  in  the  fifteenth  year  of  his  reign.  That  char- 
ter has  ever  since  continued  in  its  general  provisions  to  reg- 
ulate the  exercise  and  distribution  of  the  powers  of  govern- 
ment. It  has  never  been  formally  abrogated  by  the  i)eople, 
and,  except  so  far  as  it  has  been  modified  to  meet  the  exi- 
gencies of  the  revolution,  may  be  considered  as  now  a  fun- 
damental law.  By  this  charter,  the  power  to  make  laws  is 
granted  to  the  General  Assembly  in  the  most  complete 
manner,  '  so  as  such  laws,  etc.,  be  not  contrary  and  rei)ng- 
nant  unto,  but  as  near  as  may  be  agreeable  to,  the  laws, 
etc.,  of  England,  considering  the  nature  and  constitution  of 
the  place  and  people  there.'  What  is  the  true  extent  of 
the  power  thus  granted,  must  be  open  to  explanation,  as 
well  by  usage  as  by  construction  of  the  terms  in  whi(;h  it  is 
given.  In  a  government  professing  to  regard  the  great 
rights  of  personal  liberty  and  of  property,  and  which  is  re- 
(juired  to  legislate  in  subordination  to  the  general  laws  of 
England,  it  would  not  lightly  be  presumed  that  the  great 
principles  of  Magna  Charta  were  to  be  disregarded,  or  that 
the  estates  of  its  subjects  were  liable  to  be  taken  away  with- 
out trial,  without  notice,  and  without  offense.  Even  if  such 
authority  could  bo  deemed  to  have  been  confided  by  the 
charter  to  the  General  Asseml)ly  of  Rhode  Island,  as  an 
exercise  of  transcendental  sovereignty,  before  the  revolution, 
it  can  scarcely  be  imagined  that  that  great  event  could  have 
left  the  people  of  that  State  subjected  to  its  unconditioned 
and  arbitrary  exercise.  That  government  can  scarcely  ])e 
deemed  to  be  free,  Avhere  the  rights  of  property  are  left 
solely  dependent  upon  the  will  of  a  legislative  body,  with- 
out any  restraint.  The  fundamental  maxims  of  a  free  gov- 
ernment seem  to  require  that  the  rights  of  personal  liberty 
and  private  property  should  be  held  sacred.  At  least  no 
court  of  Justice  in  this  country  would  be  warranted  in  as- 
suming that  the  power  to  violate  and  disregard  them — a 
power  so  repugnant  to  the  common  principles  of  justice  and 


VOID    JUDICIAL    SALES.  93 

civil  liberty — lurked  imder  any  general  grant  of  legislative 
authority,  or  ought  to  be  implied  from  any  general  expres- 
sions of  the  will  of  the  people.  The  people  ought  not  to 
be  presumed  to  part  with  rights  so  vital  to  their  security 
and  well-being,  without  very  strong  and  direct  expressions 
of  such  an  intention. 

"  In  Terret  v.  Taylor,-^^  it  was  held  by  this  court,  that 
a  orant  or  title  to  hinds  once  made  l)v  the  leijislature 
to  any  person  or  corporation,  is  irrevocable,  and  can 
not  be  re-assumed  by  any  subsequent  legislative  act,  and 
that  a  different  doctrine  is  utterly  inconsistent  with  the 
great  aud  fundamental  principle  of  a  republican  govern- 
ment, and  with  the  rights  of  the  citizens  to  the  free  enjoy- 
ment of  their  property  lawfully  acquired.  We  know  of  no 
case  in  which  a  legislative  act  to  transfer  the  property  of 
A  to  B,  without  his  consent,  has  ever  been  held  a  consti- 
tutional exercise  of  legislative  power  in  any  state  in  the 
Union.  On  the  contrary,  it  has  been  constantly  resisted,  as 
inconsistent  with  just  principles,  by  every  judicial  tribunal 
in  which  it  has  been  attempted  to  be  enforced.  We  are  not 
prepared,  therefore,  to  admit  that  the  people  of  Rhode 
Island  had  ever  delegated  to  their  legislature  the  power  to 
divest  the  vested  rights  of  property  and  transfer  them  with- 
out the  assent  of  the  parties.  The  counsel  for  the  plaintiffs 
have  themselves  admitted  that  they  can  not  contend  for  any 
such  doctrine. 

"The  question  then  arises,  whether  the  act  of  1792  in- 
volves any  such  exercise  of  power.  It  is  admitted  that  the 
title  of  an  heir  by  descent  in  the  real  estate  of  his  ancestor, 
and  of  a  devisee  in  an  estate  unconditionally  devised  to 
him,  is,  upon  the  death  of  the  party  under  whom  he 
claimed,  immediately  devolved  u\um  him,  and  he  acquires 
a  vested  estate.  But  this,  though  true  in  a  general  sense, 
still  leaves  his  title  incumbered  with  all  the  liens  which  have 
been  created  by  the  party  in  his  lifetime,  or  by  the  law  at 
his  decease.  It  is  not  an  unriualificd,  though  it  he  a  vested 
interest,  and  it  confers  no  title,  except  to  what  remains 
»i  9  Cranch,  43. 


94  VOID    JUDICIAL    SALES. 

after  every  such  lien  is  discharged.  In  the  present  case, 
the  devisee,  nnder  the  will  of  elonathan  Jenckes,  withont 
doubt,  took  a  vested  estate  in  fee  in  the  lands  in  Rhode 
Island.  l>nt  it  was  an  estate  subject  to  all  the  qualilica- 
tions  and  liens  which  the  laws  of  that  state  annexed  to  those 
hinds.  It  is  not  sufficient,  to  entitle  the  heirs  of  the  devisee 
now  to  recover,  to  establish  the  fact  that  the  estate  so 
vested  had  been  divested,  but  that  it  has  been  divested  in  a 
manner  inconsistent  with  the  principles  of  law. 

'*  By  the  hiws  of  Rhode  Island,  as  indeed  by  the  laws  of 
the  other  New  England  states  (for  the  same  general  system 
pervades  them  on  this  subject),  the  real  estate  of  testators 
and  intestates  stands  chargeable  with  the  payment  of  their 
debts,  upon  a  deticiency  of  assets  of  personal  estate.     The 
deticiency  being  once   ascertained  in  the  probate   court,  a 
license  is  granted  by  the  proper  judicial  tribunal,  upon  the 
petition  of  the  executor,  or  administrator,  to  sell  so  much 
of  the  real  estate  as  may  be  necessary  to  pay  the  debts  and 
incidental  charges.     The  manner  in  which  the  sale  is  made 
is  prescribed  l)y  the   general   laws.     In  Massachusetts  and 
Rhode  Island,  the  license  to  sell   is  granted,  as  matter  of 
course,  without   notice  to  the   heirs  or  devisees,  upon  the 
mere  production  of  proof  from  the  probate  court  of  the  de- 
ficiency of  personal  assets.     And  the  purchaser  at  the  sale, 
upon  receiving  a  deed  from  the  executor  or  administrator, 
has  a  complete  title,  and  is  in  immediately  under  the   de- 
ceased, and  may  enter  and  recover  possession  of  the  estate, 
notwithstanding  any  intermediate  descents,  sales,  disseizins, 
or  other  transfers  of  title  or  seizin.  If,  therefore,  the  whole 
real  estate  be  necessary  for  the  payment  of  debts,  and  the 
whole  is   sold,  the  title  of  the  heirs  or  devisees  is,  by  the 
general  operations  of  law,  divested  and  superseded  ;  and  so, 
pro  tanto,  \\\  case  of  a  partial  sale. 

"  From  this  summary  statement  of  the  laws  of  Rhode 
Island,  it  is  apparent  that  the  devisee  under  whom  the 
present  plaintiils  claim,  took  the  land  in  controversy,  sub- 
ject to  the   lien  for  the   debts  of  the  testator.     Her  estate 


VOID    JUDICIAL    SALES.  95 

was  a  defeasible  estate,  liable  to  be  divested  upon  a  sale  by 
the  executrix,  in  the  ordinary  course  of  law,  for  the  pay- 
ment of  such  debts,  and  all  that  she  could  rightfully  claim 
would  lie  the  residue  of  the  real  estate  after  such  debts 
were  fully  satislied.  In  point  of  fact,  as  it  appears  from 
the  evidence  in  the  case,  more  debts  were  due  in  Rhode 
Island  than  the  whole  value  for  w^hich  all  the  estate  there 
was  sold  ;  and  there  is  nothing  to  impeach  the  fairness  of 
the  sale.  The  probate  proceedings  further  show,  that  the 
estate  was  represented  to  be  insolvent;  and,  in  fact,  it 
approached  very  near  to  an  actual  insolvency.  So  that,  upon 
this  posture  of  the  case,  if  the  executrix  had  proceeded  to 
obtain  a  license  to  sell,  and  had  sold  the  estate  according  to 
the  general  laws  of  Rhode  Island,  the  devisee  and  her  heirs 
would  have  been  divested  of  their  whole  interest  in  the  es- 
tate, in  a  manner  entirely  complete  and  unexceptionable. 
They  have  been  divested  of  their  formal  title  in  another 
manner,  in  favor  of  creditors  entitled  to  the  estate ;  or 
rather,  their  formal  title  has  been  made  subservient  to  the 
paramount  title  of  the  creditors. 

♦'  Some  suggestions  have  been  thrown  out  at  the  bar,  in- 
timating a  doubt  whether  the  statutes  of  Rhode  Island, 
giving  to  its  courts  authority  to  sell  lands  for  payment  of 
debts,  extended  to  cases  where  the  deceased  was  not  at  the 
time  of  his  death  an  inhabitant  of  the  state.  It  is  believed 
that  the  practical  construction  of  these  statutes  has  been 
otherwise.  I>ut  it  is  unnecessary  to  consider  whether  that 
practical  construction  be  correct  or  not,  inasmuch  as  the 
laws  of  Rhode  Island,  in  all  cases,  make  the  real  estate  of 
persons  deceased  ciiargeable  with  their  debts,  whether  in- 
hal)itants  or  not.  If  the  authority  to  enforce  such  a  charge 
by  a  sale,  lie  not  confided  to  any  sui)ordinate  court,  it  must, 
if  at  all,  be  exercised  by  the  legislature  itself.  If  it  be  so 
confided,  it  still  remains  to  be  shown  that  the  legisjatnio  is 
pieclndcd  from  a  concuiient  exercise  of  power. 

"\\'hat,    then,   are  the   objections  to   the   act    of    17ii2? 
First,  it   is  said  that  it  divests  vested  rights  oi'  jiroperty. 


9(>  V(>11>    ,7111)101  AL    SALES. 

Hilt  it  has  hccii  Jilroady  shown  that  it  divests  no  such  rights, 
except  in  fiivor  of  existing  liens,  of  paramount  obligation, 
and  that  the  estate  was  vested  in  the  devisee,  expressly  sub- 
ject to  such  rights.  Then,  again,  it  is  said  to  l)e  an  act  of 
judicial  authority  which  the  legislature  was  not  competent  to 
exercise  at  all ;  or,  if  it  could  exercise  it,  it  could  be  only 
after  due  notice  to  all  the  parties  in  interest,  and  a  hearing 
and  decree.  We  do  not  think  that  the  act  is  to  be 
considered  as  a  judicial  act,  but  as  an  exercise  of  legislation. 
It  purports  to  be  a  legislative  resolution,  and  not  a  decree. 
As  to  notice,  if  it  were  necessary  (and  it  certainly  would 
be  wise  and  convenient  to  give  notice,  where  extraordinary 
eftbrts  of  legislation  are  resorted  to,  which  touch  private 
rights),  it  might  well  be  presumed,  after  the  lapse  of  more 
than  thirty  years  and  the  ac(piiescence  of  the  parties  for 
the  same  period,  that  such  notice  was  actually  given.  But 
by  the  general  laws  of  Rhode  Island  upon  this  subject,  no 
notice  is  required  to  be,  or  is  in  practice  given  to  heirs  or 
devisees,  in  cases  of  sales  of  this  nature  ;  and  it  would  be 
strange  if  the  legislature  might  not  do,  without  notice,  the 
same  act  which  it  would  delegate  authority  to  another  to  do 
without  notice.  If  the  legislature  had  authorized  a  future 
sale  by  the  executrix  for  the  payment  of  debts,  it  is  not  easy 
to  perceive  any  sound  objection  to  it.  There  is  nothing  in 
the  nature  of  the  act  which  requires  that  it  should  be  per- 
formed by  a  judicial  tribunal,  or  that  it  should  be  performed 
by  a  delegate,  instead  of  the  legislature  itself.  It  is  reme- 
dial in  its  nature,  to  give  effect  to  existing  rights. 

"But  it  is  said  that  this  a  retrospective  act,  which  gives 
validity  to  a  void  transaction.  Admitting  that  it  does  so,  still 
it  does  not  follow  that  it  may  not  be  within  the  scope  of  the 
legislative  authority,  in  a  government  like  that  of  Rhode 
Island,  if  it  does  not  divest  the  settled  rights  of  property. 
A  sale  had  already  been  made  by  the  executrix  under  a  void 
authority,  but  in  entire  good  faith  (for  it  is  not  attempted 
to  be  impeached  for  fraud),  and  the  proceeds,  constituting 
a  fund  for  the  payment  of  creditors,  were  ready  to  be  distrib- 


VOID    JUDICIAL    SALES.  97 

uted  as  soon  as  the  sale  was  made  effectual  to  pass  the  title. 
It  is  but  common  justice  to  presume  that  the  legishiture  was 
satisfied  that  the  sale  was  bona  fide  and  for  the  full  value  of 
the  estate.  No  creditors  have  ever  attempted  to  disturb 
it.  The  sale,  then,  was  ratified  by  the  legislature,  not  to 
destroy  existing  rights,  but  to  effectuate  them,  and  in  a 
manner  beneficial  to  the  parties.  We  can  not  say  that  this 
is  an  excess  of  legislative  power,  unless  we  are  pre[)ared  to 
say  that,  in  a  state  not  having  a  written  constitution,  acts  of 
legislation  having  a  retrospective  operation  are  void  as  to 
all  persons  not  assenting  thereto,  even  though  they  may  be 
for  beneficial  purposes  and  to  enforce  existing  rights.  We 
think  that  this  can  not  be  assumed,  as  a  general  pi'inciple, 
by  courts  of  justice.  The  present  case  is  not  so  strong  in 
its  circumstances  as  that  of  Calder  v.  Bull,'^^^  or  Rice  v. 
Parkman,^®  in  both  of  which  the  resolves  of  the  letjislature 
were  held  to  be  constitutional."^ 

Sec.  55.  Confirming  Irregular  Judicial  Proceedings. — 
The  decision  just  quoted  is  extreme  in  its  character,  in  this, 
that  it  afiirms  the  constitutionality  of  a  statute  which  con- 
firmed proceedings  that  had,  of  themselves,  not  even  the 
shadow  of  validity.  The  defect  in  the  title  made  good  bj 
this  statute,  did  not  arise  from  any  irregular  exercise  of  ex- 
isting authority,  ])ut  from  the  palpable  absence  of  all 
authority  whatsoever.  The  court  under  which  the  executrix 
had  acted  was  notoriously  without  jurisdiction  in  the  mat- 
ter. In  so  far  as  this  decision  maintains  that  proceedings 
prosecuted  without  jurisdiction  over  the  person  or  subject- 
matter  may  be  sul)sequently  validated  by  legislative  action, 
we  think  it  is  squarely  in  confiict  with  the  opinions  of  the 
jurists  of  the  present  age.  But  mere  irregulaiities  of  pro- 
ceeding, though  of  so  grave  a  character  as  to  render  a 
judicial  or  executive  sale  in')pcrative,  may  be  depi'ived  of 
their  evil  consctjuences  by  subsequent  legislation.    In  Pcnn- 

"i^^W  Diill.  Kep.  .38(5. 

2Kilf;  Mas<^.  liop.  :{2G. 

a«  WilL.in.son  v.  Leland,  2  Pet.  656. 


98  VOID    JUDICIAL    SALES. 

sylvania,  :i  judirmont  promatuvcly  entered  was  confirmed  hy 
an  act  of  the  legislature,  after  a  sale  of  the  defendant's  prop- 
erty had  been  made  under  it.  "  The  error  in  entering  the 
judgment,"  said  the  court,  "is  cured  by  the  contirming 
act  ;  the  constitutionality  of  this  no  man  can  doubt.  It 
impaired  no  contract,  disturbed  no  vested  right,  and  if  ever 
there  was  a  case  in  which  the  legishiture  ought  to  stretch 
forth  its  strong  arm  to  protect  a  whole  community  from  an 
impending  evil,  caused  by  mere  slips,  this  was  the  occasion. 
Contirming  acts  are  not  uncommon — are  very  useful ;  deeds 
acknowledged  defectively  by  feme  coverts  have  been  con 
firmed,  and  proceedings  and  judgments  of  commissioned 
justices  of  the  peace,  who  were  not  commissioned  agree- 
ably to  the  constitution,  or  where  their  power  ceased  on  the 
division  of  the  counties,  until  a  new  appointment.  This 
law  is  free  from  all  the  odium  to  which  retrospective  laws 
are  generally  exposed.  Where  a  law  is  in  its  nature  a  con- 
tract, where  absolute  rights  are  vested  under  it,  a  law  retro- 
specting,  even  if  constitutional,  would  not  be  extended  l)y 
any  liberal  construction,  nor  would  it  be  construed,  by  any 
general  words,  to  embrace  cases  where  actions  are  brought. 
Retrospective  laws,  which  only  vary  the  remedies,  divest  no 
right,  but  merely  cure  a  defect  in  a  proceeding  otherwise 
fair — the  omission  of  formalities  which  do  not  diminish  ex- 
isting obligations,  contrary  to  their  situation  when  entered 
into  and  when  prosecuted  ;  for  one  is  consistent  with  every 
principle  of  natural  justice,  while  the  other  is  repugnant. 
The  plaintiff  in  error  could  not  be  injured,  whether  the 
judgment  was  entered  on  the  Monday  or  Wednesday  of  the 
week.  It  did  not  deprive  him  of  any  opportunity  of  de- 
fense. If  he  filed  a  counter  statement  or  plea,  appeared 
and  took  defense  any  time  in  the  week,  the  court  would 
have  received  it."^*"^  But,  as  a  general  rule,  the  courts  will 
not  uphold  statutes  which  interfere  with  the  effect  of  their 
pre-existing  judgments.^^     In  Indiana,  however,  a  curative 

28.5  Underwood  v.  Lilly,  10  S.  &  K.  07. 

286  Hence,  the  legislature  can  not  authorize  a  court  to  re-open  its  judg- 


VOID    JUDICIAL    SALES.  99 

act  was  held  valid  which  made  valid  the  proceedings  of  a 
term  of  court  held  without  authority  of  law. ^^  But,  in  this 
state,  the  extreme  ground  is  maiutained,  that  a  legislature 
may  always  make  void  acts  valid,  unless  restrained  by  some 
direct  constitutional  provision.-^  In  Massachusetts,  an 
executor's  sale  was  confirmed,  in  a  case  where  she  had 
given  no  notice  as  prescribed  by  law  of  her  petition  for  the 
license  to  sell,  and  the  eontirmatory  act  was  declared 
valid.  But  in  this  case  the  heirs  had,  in  writing,  assented 
to  the  sale.2«» 

Sec.  56.  Proceedings  Based  on  Void  Judgments  can  not 
he  Validated. — One  of  the  limitations  on  the  enactment  of 
valid  curative  statutes  is,  that  a  legislature  can  not  make 
immaterial,  by  subsequent  enactment,  an  omission  which  it 
had  no  authority  to  dispense  with  by  previous  statute.^ 
It  is  usually  understood  that  the  legislature  has  no  power  to 
authorize  an  adjudication  against  a  person  without  giving 
him  any  opportunity  of  making  his  defense.  This  he  can 
not  make  unless  he  has  some  notice  of  the  proceeding 
against  him.  There  must  be  something  to  give  the  court 
jurisdiction  over  his  person.  If,  therefore,  the  proceedings 
had  in  a  court  are  prosecuted  without  jurisdiction,  the  leg- 
islature can  not  subse(]uently  make  them  valid. •^^  An  act 
was  passed  by  the  legislature  of  Illinois,  and,  being  invoked 
for  the  [)urpose  of  sustaining  proceedings  where  no  service 
of  summons  had  been  made  on  the  defendants,  its  validity 
was  denied  in  an  opinion  by  Caton,  C.  J.,  in  the  course  of 

ments  after  the  time  for  aj^peal  lias  expired.  De  Chastellux  v.  Fairchild, 
15  Pa.  St.  18;  Hill  v.  Town  of  Sunderland,  3  Vt.  507;  Davis  v.  Menasha^ 
21  Wis,  491 ;  Taylor  v.  Place.  4  R.  I.  324;  Lewis  v.  Webb,  3  Greenl.  326; 
Denny  v.  ^lattoon.  2  Allen.  37!),  overruling  IJraddee  v.  Brownfield,  2  W. 
&S.  271. 

'^  Walpole  V.  Elliott,  IS  Ind.  258. 

»«Ib. ;  Andrews  v.  Kiissell,  7  Hla(kf.474;  Orinies  v.  Doe,  8  Blackf.371. 

awSohier  v.  Mass.  fJeiiM  Hospital,  3  Ciisii.  ■183. 

'■CO  State  V.  Squires,  2(;  la.  340. 

»•  Hopkins  v.  Mason,  (51  Barb.  40!);  Hart  v.  Henderson.  17  Mich.  218; 
Griflin  v.  CunniM^haui.  20  (Jratt.  ]0:»;  Lane  v.  Nelson,  7!)  Pa.  St.  -107; 
Pryor  v.  Downey.  .')0  Cal.  3S1>. 


100  VOID    JUDICIAL    SALES. 

which  he  said  :  "  If  it  was  competent  for  the  Icgishiture  to 
make  a  void  proceeding  valid,  then  it  has  been  done  in  this 
case.  Upon  this  qnestion  we  can  not  for  a  moment  donbt 
or  hesitate.  They  can  no  more  impart  a  binding  eHicacy  to 
a  void  proceeding  than  they  can  take  one  man's  property 
from  him  and  give  it  to  another.  Indeed,  to  do  the  one  is 
to  accomplish  the  other.  By  the  decree  in  this  case,  the 
will  in  qnestion  was  declared  void,  and,  consequently,  if 
etiect  be  given  to  the  decree,  the  legacies  given  to  those 
absent  defendants  will  be  taken  from  them  and  given  to 
others,  according  to  our  statutes  of  descents.  Until  the 
passage  of  the  act  in  question,  they  were  not  bound  by  the 
verdict  of  the  jury  in  this  case,  and  it  could  not  form  the 
basis  of  a  valid  decree.  Had  the  decree  been  rendered  be- 
fore the  passage  of  the  act,  it  would  have  been  as  competent 
to  make  that  valid  as  it  was  to  validate  the  antecedent  pro- 
ceedings, upon  which  alone  the  decree  could  rest.  The  want 
of  jurisdiction  over  the  defendants  was  as  fatal  to  the  one  as 
it  could  be  to  the  other.  If  we  assume  the  act  to  be  valid, 
then  the  legacies,  which  before  belonged  to  the  legatees, 
have  now  ceased  to  be  theirs,  and  this  result  has  been 
brouofht  about  bv  the  legislative  act  alone.  The  effect  of 
the  act  upon  them  is  precisely  the  same  as  if  it  had  declared, 
In  direct  terms,  that  the  legacies  bequeathed  by  this  will  to 
these  defendants  should  not  go  to  them,  but  should  descend 
to  the  heirs  at  law  of  the  testator,  according  to  our  law  of 
descent.  This,  it  will  not  be  pretended,  they  could  do  direct- 
ly, and  they  had  no  more  authority  to  do  it  indirectly,  by 
making  proceedings  binding  upon  them  which  were  void  at 
law."  ^^  In  the  case  just  cited,  no  sale  had  been  made.  It 
was  a  suit  in  equity  to  set  aside  a  will.  Atrial  had  been 
had,  resultins:  in  favor  of  the  plaintiffs.  It  was  then  dis- 
covered that  certain  non-resident  minor  defendants,  who  had 
answered  by  guardian  ad  litem,  had  not  been  properly 
served  with  process.  The  effect  sought  by  the  statute  was 
simplv  to  validate  a  void  judgment.  In  the  case  of  Nelson 
»2  McDaniel  v.  Correll,  19  111.  228. 


VOID    JUDICIAL    SALES.  101 

V.  Roiintree,-*^^'  it  appeared  that  a  judgment  had  been  entered 
in  an  action  in  which  the  summons  was  served  by  publica- 
tion. There  was  no  authority  for  such  service,  because  tlie 
affidavit  for  the  order  of  publication  failed  to  show  that  a 
cause  of  action  existed  against  the  defendants.  The  judg- 
ment was  therefore  void.  The  legislature  subsequently  de- 
clared that  "all  orders  of  publication  heretofore  made  shall 
be  evidence  that  the  court  or  officer  authorized  to  grant  the 
same  was  satisfied  of  the  existence  of  all  the  facts  requisite 
to  grantino;  such  order  or  orders,  and  shall  be  evidence  of 
the  existence  of  such  facts."  Perhaps  the  constitutionality 
of  this  statute  miijht  have  been  maintained  on  the  ground 
that  it  simply  created  a  rule  of  evidence,  or  shifted  the  bur- 
den of  proof  from  one  person  to  another.'^  The  supreme 
court  of  the  state,  however,  regarded  it  as  a  confirmatory 
act,  and  denounced  it  as  follows  :  "If  it  was  competent  for 
the  legislature  to  make  this  declaration,  then  it  was  com- 
petent for  it  to  have  declared  that  to  be  a  judgment  which  was 
before  no  judgment,  and  ])inding  on  the  party  against  whom 
formally  rendered,  when  before  he  was  not  bound  at  all ;  for 
such  is  the  direct  result.  It  is  a  proposition,  not  now  to  be  dis- 
cussed at  this  day,  that  the  legislature  has  no  such  })ower."^* 
Speaking  of  an  act  of  assembly  purporting  to  validate  cer- 
tain proceedings  in  partition,  which  were  void  because  one 
of  the  defendants  had  no  notice  of  their  pendency,  the  Su- 
preme Court  of  Pennsylvania  said:  "The  act  itself  is  un- 
constitutional and  void,  as  an  infringement  of  the  inhibition 
contained  in  the  9th  section  of  the  declaration  oi"  rights, 
article  ix.  of  the  constitution,  that  no  person  'can  be  de- 
prived of  his  life,  liberty  and  property,  unless  \)y  the  judg- 
ment of  his  peers  or  the  law  of  the  land.'     What  is  the  act 

293  23  Wis.  .307. 

»*  Tli(!  li'^isl:itiire  may  (;h:mj>;c  the  burden  of  proof  by  enact iiiij  that 
proeoedings  thLTOlofore  taken  in  a  court  of  special  or  lin)ited  jurisdic- 
tion sliall  be  presumed,  prima  facio^  to  have  been  taken  ri<;iitfuily;  and 
thus  compel  a  person  assailing;  sucli  proceedings  to  sliow  tiiat  the  court 
never  acrpiired  jurisdiction.     Cli:niiil<'r  v.  Xorthrop,  '21  Fiarlj.  120. 

»i  Nelson  V.  liountree,  23  \Vi-.  37(.). 


102  VOID    JUDICIAL    SALES. 

1)ut  :i  inoro  bald  jittetiipt  to  take  the  property  of  A  and 
«i-ivo  it  lo  B?  It  was  not  a  case  in  which  tlio  mere  irreo;ii- 
laritv  of  a  jndgnuMit  or  a  formal  defect  in  the  acknowledg- 
ment of  a  deed  was  cured,  where  the  equity  of  the  party  is 
complete  and  all  that  is  wanting  is  legal  form.  Such  were 
Underwood  v.  Lilly,-"''"  Tate  v.  Stooltzfoos,^^^  Satterlee  v. 
Matthewson,'^^^  and  Mercer  v.  Watson.^^^  On  the  contrary, 
it  is  very  clearly  within  the  principle  of  Norman  v.  Ileist,'^"*^ 
Greenough  v.  Greenough,'"'^  De  Chastellux  v.  Fairchild,^''^ 
Bagg's  Appeal,^'^  Shafer  v.  Kneu,^*^  and  Shonk  v.  Brown.^°* 
These  cases  abundantly  sustain  the  position  that  an  act  of 
the  legislature  can  not  take  the  property  of  one  man  and 
give  it  to  another,  and  that  when  it  has  been  attempted  to 
be  taken  by  a  judicial  proceeding,  as  a  sheriff's  sale,  which 
is  void  for  want  of  jurisdiction,  it  is  not  in  the  power  of  the 
legislature  to  infuse  life  into  that  which  is  dead — to  give 
effect  to  a  mere  nullity.  That  would  be  essentially  a  judi- 
cial act — to  usurp  the  })rovince  of  the  judiciary — to  fore- 
stall or  reverse  their  decision.^"*^  Of  course,  the  legislature 
can  no  more  validate  proceedings  l)efore  a  court  or  officer 
incompetent  to  entertain  and  decide  them,  than  it  can  vivify 
judgments  void  for  want  of  jurisdiction  over  the  person  of 
the  defendant.^'" 

Sec.  57.  Defects,  other  than  Juvlsdictional,  loJiicli  have 
been  held  Incurable. — There  are  other  defects,  besides  juris- 
dictional ones,  on  account  of  which  void  sales  have  been 
13ronounced  incurable.  In  Pennsylvania,  an  execution  sale 
was  void  ])ecause  made  after  the  return  day  of  the  writ. 
Subsequently  the  legislature  enacted  that,  "All  sales  of 
real  estate  made  by  sheriffs  or  coroners,  after  the  return  day 

29fi  10  S.  &  R.  97.  297 16  S.  &  E.  35. 

298 10  8.  &  R.  191.  299 1  Watts,  :5:50. 

300  5  W.  &  S.  171.  30111  Pa.  S.  489. 

302 15  Pa.  S.  IS.  303  43  Pa.  S.  .512. 

'^'A  \h..  .304.  305 GI  lb.,  320. 

306j{i,ji,ar(]s  V.  Rote,  68  Pa.  S.  2.55. 

^  Denny  v.  Mattoon,  2  Allen,  383 ;  State  v.  Doherty,  GO  Me.  504 ;  Pryor 
V.  Downey,  50  Cal.  389. 


VOID    JUDICIAL    SALES.  103 

of  their  several  writs  oi  levari  facias,  fieri  facias,  venditioni 
exponas,  or  other  writ  of  execution,  shall  not,  on  account  of 
such  irregularity  in  such  proceedings,  be  set  aside,  invali- 
dated, or  in  manner  affected,  and  such  sales  so  made  shall 
be  held  as  good  and  valid,  to  all  intents  and  purposes,  as  if 
such  sale  had  been  made  on  or  before  the  return-day  of  the 
writs  respectively."  The  Supreme  Court  of  the  state,  in 
deciding  a  case  arising  under  this  act,  asked  the  questions  : 
*'  Is  this  act  constitutional?  The  sale  being  made  contrary 
to  legislative  enactment,  and  declared  by  this  court  utterly 
void,  can  the  legislature  validate  such  a  sale  to  the  injury  of 
another  party?  In  plain  English,  can  they  take  one  man's 
property  and  give  it  to  another — property  which  is  secured 
to  him  by  the  constitution  and  laws?"  It  then  answered 
the  question  as  follows:  "In  this  case,  the  purchaser 
bonght  in  the  face  of  a  recent  statute  which  he  was  bound 
to  know  and  obey,  and  purchased  with  his  eyes  o]3en.  He 
has  no  moral  claim  to  have  the  sale  made  good.  The  act 
of  the  legislature  which  covers  this  case  is  unconstitutional 
and  void."^^^  A  sale  void  on  account  of  fraud  practiced  by 
the  purchasers  can  not  be  validated  by  the  legislature.  It 
does  not  come  within  the  principle  of  that  class  of  cases  in 
which  a  legislature  has  been  held  to  have  the  powder  to  con- 
firm by  retroactive  laws  the  acts  of  public  officers,  who  have 
exceeded  or  iiiq:)erfectly  executed  their  authority. "^''^ 

Sec.  5S.  Inforraalilies  may  be  Waived  by  Subsequent 
Curative  Acts. — Where  a  sale  is  void  for  some  defect  in  the 
proceedings,  not  jurisdictional  in  its  character,  it  may,  in 
most  states,  be  validated  by  subsequent  curative  act  of  the 
legislature.^'*'  Hence,  acts  have  been  adjudged  to  be  consti- 
tutional wliicli  validated  sales  which  were  void  because  made 


3*«D!ilf;  V.  Medcalf,  '.)  Pa.  St.  110.  Sec  also  Orton  v.  Nooiiaii,  2:5  Wis. 
102. 

3«' White  M'ts  K.  M.  v.  Wiiitc  M'ts  R.  R.,  50  N.  II.  50. 

;tiOLjine  V.  Nelson,  70  Pa.  St.  407;  Boyeo  v.  Sinclair.  .'5  Rush,  2G1 ; 
Beach  v.  Walker,  0  Conn.  107;  Booth  v.  Booth.  7  ("onii.  :i5{J;  Wildes  v 
Vanvoorhis,  15  Gray,  130. 


104  VOID    JUDICIAL    SALES. 

in  violation  of  the  appraisement  laws,^"  or  based  on  detective 
levies  or  returns,''^'  or  on  charges  of  unlawfnl  or  excessive 
fees,^^^  or  made  by  an  officer  of  another  bailiwick  from  that 
in  which  the  lands  sold  were  sitnate.^^*  In  the  opinion  of 
Jndge  Cooley,  "the  rule  applicable  to  cases  of  this  de- 
scription is  substantially  the  following :  If  the  thing  want- 
ing, or  which  failed  to  be  done,  and  which  constitutes  the 
defect  in  the  proceedings,  is  something,  the  necessity 
for  which  the  legislature  might  have  dis})ensed  with  by 
prior  statute,  then  it  is  not  beyond  the  power  of  the 
legislature  to  dispense  with  it  by  subsequent  statute. 
And  if  the  irregularity  consists  in  doing  some  act,  or  in 
the  mode  or  manner  of  doing  some  act,  which  the  leg- 
islature might  have  made  immaterial  by  prior  law,  it  is 
equally  competent  to  make  the  same  immaterial  by  a  subse- 
quent law."^^^  A  partition  sale  was  made  to  a  company  of 
persons,  but  the  deed,  by  their  consent,  was  made  to  one 
only,  for  convenience  of  selling  and  conveying.  The  deed 
was  invalid  because  it  did  not  foUowthe  sale  and  order  of  con- 
firmation. An  act  was  subsequently  passed  providing  that, 
on  satisfactory  proof  being  made  to  a  court  or  jury  that  the 
lands  w^ere  fairly  sold,  in  good  faith  and  for  a  sutficient  con- 
sideration, the  deed  should  be  held  valid.  This  act  was 
held  free  from  constitutional  objections.^^^  In  Massachus- 
etts, an  act  confirming  deeds  made  by  certain  executors  was 

311  Davis  V.  State  Bank,  7  Ind.  310;  Thornton  v.  McGrath,  1  Duv.  349; 
Boyce  v.  Sinclair,  3  Bush,  261. 

312  Mather  v.  Chapman,  6  Conn.  54;  Xorton  v.  Pettibone,  7  Conn.  319. 

313  Booth  V.  Bootli,  7  Conn.  350. 

3i4Menges  v.  Wertnian,  1  Pa.  St.  21S,  overruled;  Menges  v.  Dentler. 
33  Pa.  St.  495. 

3i5Cooley*s  Const.  Lim.  371.  Hence,  deeds  not  executed  in  the  mode 
presciibed  by  statute  may  be  validated  by  a  statute  passed  subsequent  to 
their  execution.  Watson  v.  Mercer.  8  Pet.  88;  Chesnut  v.  Shane's  Les- 
see, 16  Oh.  599;  Newman  v.  Samuels,  17  la.  528;  Shonk  v.  Brown,  61  Pa. 
S.  327;  Dulany  v.  Tilghman,  6  G.  «fc  J.  461 ;  Journeay  v.  Gibson,  56  Pa. 
S.  57 ;  Dentzel  v.  Waldie,  30  Cal.  138.  Contra,  Pearce  v.  Patton,  7  B.  Monr. 
162;  Russell  v.  Rumsey,  35  III.  362;  Ala.  L.  I.  &  T.  Co.  v.  Boykin,  38 
Ala.  510. 

316  Kearney  v.  Taylor,  15  How.  U.  S.  494. 


VOID    JUDICIAL,    SALES.  105 

held  valid,  though  they  "  had  not  previously  been  appointed 
and  given  bond  in  such  a  manner  as  to  authorize  them  to 
execute  the  power  of  sale  conferred  by  the  will."^^^  But, 
in  this  case,  the  heirs  at  law  of  the  testator  released  all 
their  interest  in  the  lands  at  the  time  the  executor's  deed 
was  executed.  An  extreme  case  is  that  of  Selsby  v.  Red- 
lon.^^^  Justices'  courts  were  authorized  to  issue  executions 
at  any  time  within  two  years  after  the  entry  of  judgment. 
Nevertheless,  under  a  misapprehension  of  the  law,  the  prac- 
tice prevailed,  to  a  considerable  extent,  of  issuing  such 
writs  at  any  time  within  five  years.  The  legislature  passed 
an  act  confirming  and  validating  proceedings  taken  under 
writs  issued  more  than  two  years  after  the  entry  of  judg- 
ment. "  Was  it  competent  for  the  legislature,  so  far  as  the 
time  of  issuing  was  concerned,  to  enact  that  all  executions 
upon  judgments  of  justices  of  the  peace  theretofore  issued 
after  the  expiration  of  two,  but  before  the  lapse  of. five  years 
from  the  time  the  judgments  were  rendered,  should  be 
deemed  valid  and  regular?  It  seems  to  me  that  it  was,  and 
that  the  act  operated  at  once  upon  all  such  executions,  the 
invalidity  of  which  had  not  already  been  adjudged  by  some 
competent  court  of  law  or  equity.  I  had  occasion  to  exam- 
ine the  question,  and  some  of  the  leading  authorities  upon 
it,  in  Hasbrouck  v.  Milwaukee,^^^  and  deem  it  unnecessary 
to  add  to  what  is  there  said.  It  ap[)ears  to  me,  in  the  lan- 
guage of  Chancellor  Kent,  to  be  one  of  those  remedial 
statutes,  not  impairing  contracts  or  distur])ing  absolute 
vested  rights,  but  going  only  to  confirm  rigiits  already  ex- 
isting, and  in  furtherance  of  the  remedy,  by  curing  defects 
and  adding  the  means  of  enforcing  existing  obligations,  the 
constitutionality  of  which  has  always  been  upheld.  The 
validity  of  the  judgment  is  not  questioned,  and  the  obliga- 
tion of  the  del)tor  to  pay  not  denied.  After  the  execution 
was  issued   and   the  judgment   satisfied,  the  question  was, 

317  We(!(l  V.  Donovan,  114  Mass.  183. 
31810  Wis.  17. 
319  i:{  Wis.  50. 


lOl)  VOID    JUDICIAL    SALES. 

whether  such  satisfuctiou  should  stand  and  the  creditor  re- 
tain what  injustice  and  equity  belonged  to  him,  or  whether 
he  should  make  restoration  to  his  del)tor  and  be  put  to  a 
now  action  to  recover  his  debt.  I  think  an  act  to  relieve 
di'l)tors  in  such  cases  to  be  not  only  just  and  reasonable, 
but  that  it  is  liable  to  no  constitutional  objection. "^^^ 

Sec.  59.  Limitaiion  on  Effect  of  Curative  Statutes. — 
Even  in  those  states  where  the  validity  of  curative  statutes 
is  conceded,  their  operation  is  usually  limited  to  the  orig- 
inal [)arties.  If  a  defendant  whose  property  has  been  so 
irreiruhirlv  sold  under  execution  that  his  title  is  not  divested, 
sell  to  a  purchaser  in  good  faith,  and  for  value,  the  title 
of  the  latter  is  regarded  as  a  vested  right  which  can  not  be 
divested  by  a  subsequent  statute.  The  same  rule  usually 
prevails  in  regard  to  all  legislation  enacted  for  the  purpose 
of  contirming  deeds  which  are  invalid  for  some  informality. 
The  curative  act  does  not  operate  against  purchasers  from 
the  grantor  in  good  faith,  and  for  value,  before  its  passage.^^^ 
The  operation  of  curative  acts  has  also  been  denied  where 
the  proceedings  had  been,  prior  to  the  passage  of  the  act, 
pronounced  void  by  the  judgment  of  a  court  of  competent 
jurisdiction  ;  ^"  and,  in  Maine,  curative  acts  do  not  operate 
to  change  the  result  of  suits  previously  pending.^^ 

Sec.  60.  General  Reflections  concerning  Curative  Stat- 
utes.— It  must,  we  suppose,  be  conceded  that,  prior  to  the 
adoption  of  the  fourteenth  amendment,  there  was  no  pro- 
vision in  the  constitution  of  the  United  States  which  pro- 
hibited the  state  legislatures  from  enacting  curative  statutes 
validating  prior  judicial  sales  and  proceedings.  The  provi- 
sion of  sec.  10,  art.  1,  forbidding  states  from  passing  ex  jpost 
facto  laws,  applies  exclusively  to  criminal  matters  and  pro- 

320Selsby  v.  Redloii,  10  Wis.  21. 

321  Xewman  v.  Samuels,  17  la.  .528;  Brinton  v.  Seevers,  12  la.  389; 
Thompson  v.  Morgan,  0  Minn.  292;  Sherwood  v.  Fleming,  25  Tex.  Supp. 
408;  Wright  v.  Hawkins,  28  Tex.  452;  Menges  v.  Dentler,  33  Pa.  St.  495, 
overruling  Menges  v.  Wertman,  1  Fa.  St.  218. 

32-2  Mayor  v.  Horn,  2G  Md.  194. 

323  Adams  v.  Palmer,  51  Me.  480. 


VOID    .rUDICIAL    SALES.  107 

ceeding.s,  and  does  not  inhibit  retrospective  legislation  in 
civil  matters.^-*  The  same  section  also  provides  that  no 
state  shall  pass  any  "law  impairing  the  obligation  of  con- 
tracts." The  word  contracts  is  sufficiently  comprehensive 
to  embrace  conveyances.  Hence  a  state  legislature  can  not 
annul  or  diminish  the  effect  of  a  valid  conveyance .^^'  But 
the  federal  constitution,  while  it  prohibited  the  impairing  of 
valid  contracts,  did  not  inhibit  the  validation  of  void  con- 
tracts, nor  the  creation  of  obligatioas,'"'^  nor  did  it  prevent 
the  state  legislatures  from  divesting  vested  rights  in  any 
i-ase  where  they  could  do  so  without  impairing  the 
obligation  of  some  pre-existing  contract.  ^'■^'  The  fifth 
amendment  to  the  constitution  of  the  United  States  de- 
c-lares that  "no  person  shall  bo  deprived  of  life,  liberty  or 
property,  without  due  process  of  law  ;  nor  shall  private 
})roperty  be  taken  for  public  use  without  just  compen- 
sation." The  prohibitions  contained  in  this  amendment 
are  addressed  to  the  federal  legislature,  and  do  not  operate 
as  limitations  of  the  powers  of  any  of  the  state  legisla- 
tures.''*^ One  of  the  £:uarantees  contained  in  the  fourteenth 
amendment  is  as  follows  :  "  Nor  shall  any  state  deprive  any 
person  of  life,  liberty  or  propety,  without  due  process  of 
law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
l)rotection  of  the  laws."  This  provision,  in  the  language  of 
Chief  Justice  Waite,  speaking  for  the  Supreme  Court  of  the 
United  States,  "adds  nothing  to  the  riglits  of  one  citizen 
against  another.  It  simi)ly  furnishes  an  additional  guarantee 
against  any  encroachment    by  the  states  upon  the  funda- 

*i4  Story  on  tlie  Const.,  sees.  134.5,  1398;  State  v.  Squires,  26  la.  340; 
Watson  V.  Mercer,  8  Pet.  88;  Carpenter  v.  Pennsylvania,  17  How.  U.  S. 
4r)»;;  Story  on  tlir^  Const.,  sec.  1398;  Caldcr  v.  Bull,  3  Dall.  3S(). 

I-' Story  on  the  Const.,  sec.  1370;  Fletcher  v.  J*cck,  G  Cranch,  137; 
People  V.  Piatt.  17  .Johns.  195;  rjro<?an  v.  San  Francisco,  18  Cal.  ."/JO; 
Louisville  v.  University,  1.")  K.  Mon.  042. 

3«  Story  on  the  Const.,  sec.  139S;  Satterlce  v.  .Mallicwson,  2  Pet.  380. 

^^  Story  on  tiie  Const.,  sec.  1398;  Satterlee  v.  Mathewson,  2  Pet.  380; 
Calderv.  Bull.  3  Dall.  380. 

*■« Barron  v.  Mayor  of  Baltimore.  7  Pet.  243;  WitluMS  v.  Buckh-y,  20 
How.  U.  S.  84. 


108  VOID    JUDICIAL    SALES. 

mental  riirhts  which  belong  to  every  citizen  as  a  member  of 
society. ''"'-^  But  whether  this  amendment  may  in  any  case 
operate  as  a  prohibition  against  curative  laws  ])assecl  by  the 
states,  is,  i)erhaps,  an  immaterial  inquiry,  for  the  reason  that 
most,  it"  not  all  of  the  state  constitutions  contain  limitations 
which,  in  substance,  withhold  the  right  to  deprive  any  per- 
son of  his  property  without  due  process  of  law. 

Those  curative  acts  which  impart  validity  to  judicial  or 
execution  sales  otherwise  void,  necessarily  result  in  the 
transfer  of  one  person's  property  to  another  without  the 
assent  of  the  former.  Before  the  passage  of  the  act^ 
property  belonged  to  A.  After  its  passage,  the  same  prop- 
erty, without  any  act  on  the  part  of  A  or  B,  and  solely 
through  the  operation  of  the  curative  statute,  is  vested  in 
the  latter.  Such  a  statute  can  not  be  maintained  on  the 
o-round  that  it  is  a  judicial  determination  that  the  title  of  B 
is  paramount  to  that  of  A,  for  the  state  constitutions  pro- 
hil)it  the  legislatures  from  exercising  judicial  functions. 
These  constitutions  also  protect  vested  rights  and  prohibit 
the  taking  of  property  from  one  person  and  giving  it  to  an- 
other, at  least  in  all  cases  where  there  has  l)een  no  resort  to 
due  process  of  law.^"  But  the  words  "property"  and 
"vested  rights,"  within  the  meaning  of  these  constitutions, 
are  difficult  of  definition.  They  seem  not  to  refer  to  the 
le«-al  title  merely, — not  to  insure  to  a  man  that  which  at  law 
belongs  to  him,  but  which  in  equity  belongs  to  another. 
The  most  justifiable  curative  legislation  is  that  which  docs 
no  more  than  to  give  a  legal  sanction  to  a  title  which  was 
theretofore  good  in  equity .'^''^     So,  it  is  said,  legislatures 

329  United  States  v.  Cruikshank,  92  U.  S.  542 ;  3  Cent.  L.  J.  295 ;  8  Ch.  L. 
N.  233.  See  City  of  Portland  v.  City  of  Bangor,  65  Me.  120;  3  Cent.  L. 
J.  651. 

330  Cooley's  Const.  Lini.,  chap.  xi.  To  ascertain  the  meaning  of  "  dne 
process  of  law,"  and  of  equivalent  terms,  see  ib. ;  Kennard  v.  Louisiana, 
8  Ch.  L.  N.  329;  92  U.  S.  480;  Walker  v.  Sauvinet,  3  Cent.  L.  J.  445;  92 
U.  S.  90;  Muiray  v.  Iloboken  L.  &  I.  Co.,  18  How.  U.  S.  272;  Story  on 
the  Const.,  sec.  1944. 

331  Chesnut  v.  Shane,  IG  Oh.  599. 


VOID    JUDICIAL    SALES.  109 

may  transmute  a  moral  into  a  lejral  obligation  f^-  and  that 
"  a  p;irty  has  no  vested  right  in  a  defense  based  upon  an  in- 
formality not  affecting  his  substantial  equities  ;"*^^  that 
"courts  do  not  regard  rights  as  vested  contrary  to  the  jus- 
tice and  equity  of  the  case  ;"^'^  that  "  a  party  can  not  have  a 
vested  rijiht  to  do  a  wronsr  :"^^^  that  "  the  rules  which  deter- 
mine  the  legislative  power  in  such  cases  are  broad  rules  of 
right  and  justice."*^*'  So,  after  all,  the  limitation  inserted 
in  the  fundamental  laws  are  so  construed  that  their  applica- 
tion depends,  not  on  settled  principles,  but  upon  notions  of 
right  and  justice.  A  man's  title  may  be  perfect  at  law.  It 
may  also  be  unassailable  in  equity.  He  has,  nevertheless, 
no  vested  rio^ht  in  it  which  he  mav  hold  paramount  to  leo-isla- 
tive  control,  unless,  in  addition  to  his  perfect  title  at  law  and  in 
equity,  his  title  also  meets  the  approval  of  the  judge  before 
whom  it  is  questioned  ;  the  latter,  in  withholding  or  granting 
such  approval,  being  governed  by  certain  rules  of  right  and 
justice  existing  in  his  own  conscience,  but  not  susceptible  of 
that  accurate  description  which  would  enable  us  to  recognize 
them  in  the  future,  and  rely  on  them  for  our  protection  and 
guidance.  Such,  at  least,  seems  to  be  the  result  of  the 
-weight  of  the  authorities. 

With  respect  to  curative  acts  affecting  judicial  and  execu- 
tion sales,  two  rules  are  commonly  put  forth  as  tests  of  their 
constitutionality.  The  first  is,  that  what  the  legislature 
could  have  disi)cnsed  with  before  the  sale,  it  may  dispense 
with  afterwards  f^''  and  the  second  is  that  courts  do  not  re- 
gard rights  as  vested  contrary  to  the  justice  and  equity  of 
the  case,  but  will  determine  the  legislative  power  on  broad 
rules  of  right  and  justice.  Neither  rule  has  been  univer- 
sally accepted  and  followed.  Thus,  though  a  statute  may 
uncpiestionably  authorize  property  to  be  sold  for  taxes,  with- 

332  Weister  v.  ILuJe,  52  Pa.  St.  480. 

333Coo]ey'8  Const.  Liiii.  :{7n. 

334  State  V.  Newark   W  I)iit<li.  107. 

2^'-'' Foster  v.  Essex  Haiik,  IG  Mass.  215. 

33«  Story  on  the  Const.,  see.  1058,  by  Coolcy. 

337  Cooley's  Const.  Lim.  :i71. 


110  VOID    JUDICIAL    SALES. 


out  tlio  aid  of  any  jiuVu-ial  proceedings  whatever,  yet  where 
smli  prcH'oodings  were  reciuired  and  were  so  prosecuted  as  to 
be  void  lor  want  of  jurisdiction  over  the  defendant,  it  was  hehl 
that    thoy  could  not  be  made  valid  by  subsequent   legisla- 
tion.'"*    So,  while  legislatures  may  authorize  guardians  and 
others  to  sell   property  belonging  to  persons  not  .mi  Juris, 
without  applying  to  court  for  authority  so  to  do,  yet  where 
such  applications  are  rccpiired  to  be  made  to  some  court, 
and  the  proceedings  of  such  court  are  void  for  want  of  ju- 
risdiction, they  can  not  be  subsequently  made  valid.'™     If 
the  rights  of  one  whose  property  has  been  sold  at  a  void  sale 
are  not  to  be  regarded  as  vested  except  when,  "  upon  broad 
rules  of  right  and  justice,"  they  should  be   so   regarded, 
then  the  distinction  ])ctween  jurisdictional  and  other  defects 
is  immaterial.     For  it  nuiy  be,  and  frequently  is,  as  unjust 
to  urge  a  jurisdictional  defect,  as  it  is  to  urge  some  other 
irregularity,  such,  for  instance,  as  the  omission  to  give  notice 
of  the  sale.     In  the  first  case,  the  sale  may  have  been  fair, 
a  good  price  realized,  and  the  proceeds  applied  to  pay  the 
debts  of  the  defendant ;  while,  in  the  second  case,  the  prop- 
erty may  have  been  sacrificed  for  Avant  of  the  notice  of  the 
sale.     If  void  judicial  or  execution  sales  may  be  made  valid, 
it  would  seem  to  be  on  the  ground  that  the  purchaser,  by  the 
payment  of  the  money  and  its  application  to  the  benefit  of 
the   defendant,    obtained   an    equity  which   the   legislature 
miffht  recognize  and  transform  into  a  legal  title  f^  that,  in 
such  a  case,  the  person  whose  property  was  sold  has  left  to 
him,  after  the  sale  and  conveyance,  a  mere  technical  and 
unconscionable  defense  ;   and  that,  in  such  a  defense,  there 
can  be  no  vested  ri<rht.     But  this  view  of  the  question  is 
not  invariably   correct  nor  necessarily  conclusive.     In  the 
first  place,  everyl)ody  is   conclusively  presumed  to  be  ac- 
quainted with  the  law.     It  can  not,  therefore,  be  expected 
that  a  sale,  made  in  such  a  manner  as  to  be  inoperative  under 


338  Nelson  v.  Koimtree,  23  Wis.  367. 

339  See  sec.  5G. 

340  Thornton  v.  McGrath.  1  Duv.  355. 


VOID    .JUDICIAL    SALES.  Ill 

the  then  existing  hiw,  will  realize  a  fair  price.  Many  persons 
must  be  deterred  from  bidding,  because  they  know  or  sus- 
pect that  the  sale  is  invalid.  He  who  purchases  must  be 
taken  to  act  with  his  eyes  open,  and  as  bidding  for  a  mere 
chance  rather  than  for  an  unquestionable  title.  All  this  is 
equally  true,  whether  the  defect  be  that  the  judgment  is 
void,  or  that  the  sale  is  invalid  from  some  other  vice.  He 
whose  property  is  sacrificed  against  his  will,  b}-  being  ex- 
posed to  the  hazard  of  a  void  sale,  has,  even  in  the  broad 
rules  of  riofht  and  justice,  ris^hts  as  sacred  as  those  of  the 
speculating  purchaser.  The  latter  is  a  mere  volunteer, 
risking  his  money  in  defiance  of  the  law.  He  is  not  im- 
posed on  in  any  manner,  nor  is  there  any  contract  between 
him  and  the  owner  of  the  property  to  urge  by  way  of 
estoppel.  But  if  an  execution  or  judicial  sale  be  void  at 
law,  it  is  usually  equally  void  in  equity.  The  purchaser  has 
no  title  which  is  recognized  in  any  prevailing  system  of  law. 
The  iudirment-debtor  is  under  no  obliijation  which  will  war- 
rant  any  court  in  compelling  him  to  convey  or  surrender  his 
property  to  the  purchaser.  Why  should  not  those  rights 
which  confer  a  perfect  title  to  property,  both  at  law  and  in 
equitv,  be  held  to  be  vested  rights?  If  such  rights  are  not 
vested,  then  what  additional  claim  to  protection  must  the 
owner  of  property  have,  before  his  rights  become  vested? 
Must  he  have  a  moral  right  or  title?  and,  if  so,  what 
does  the  word  moral  mean  in  this  connection?  Has  it  some 
definite  signification?  or  must  it,  for  all  the  practical  piir- 
j)Oses  of  litigation,  vary  so  as  to  correspond  with  the  moral 
perceptions  of  the  different  judges?  In  pronouncing  the 
opinion  of  the  Supreme  Court  of  California,  in  an  action 
wherein  an  licir  had  sued  to  recover  his  inheritance,  Mr. 
Justice  McKinstry  very  forcibly,  said  :  "As  to  any  vague, 
indeterminate  and  indetei'minablf  '  moral  equit}^'  if  any 
such  exist,  it  may  well  be  doubted  whether  we  can  recognize 
such,  since  the  courts  have  no  standard  by  which  to  esti- 
mate its  sufficiency  or  eftectiveness.  Even  if  we  could 
adopt,  however,  the  measure  of  rights   suggested    by  some 


11-  VOID    JUDICIAL    SALES. 

(if  llic  cases,  we  arc  not  prepared  to  hold  that  the  plaintiff' 
in  this  action  may  not  insist  upon  his  complete  legal  and 
tHjuitable  title,  without  violating  any  principle  of  morality.*" 
Admiltins:  that  the  estate  of  the  ancestor  comes  to  the  heir 
burdened  with  the  debts  of  the  former,  it  is  still  the  right 
of  the  latter,  when  courts  are  organized  or  are  required  by 
the  constitution  to  be  organized  for  the  settlement  of  the 
estates  of  decedents,  to  have  the  debts  ascertained  and  the 
property  applied  by  a  tribunal  of  com[)etent  jurisdiction. 
And,  upon  any  theory,  the  doctrine  of  estoppel,  which  is 
claimed  to  impose  an  imperfect  duty  capable  of  being 
ripened  into  a  perfect  obligation  by  the  legislative  will, 
can  have  no  application,  unless  a  party,  by  his  own  contract 
or  other  voluntary  act,  has  placed  himself  in  such  an  atti- 
tude that  it  would  be  a  violation  of  sound  morality  on  his 
part  for  him  to  adhere  to  and  insist  on  his  legal  and  equita- 
able  rights.  It  ought  not  to  be  made  to  apply  to  this 
plaintiff  merely  because  he  was  a  party,  as  an  infant,  to  a 
pretended  legal  proceeding."^ 

Ml  9  Gill,  299. 

342Pryor  v.  Downey,  50  Cal.  403. 


VOID    JUDICIAL,    SALES.  113 


CHAPTER    VII. 


CONSTITUTIONALITY   OF    SPECIAL   STATUTES   AUTHORIZING 

INVOLUNTARY   SALES. 

Section  61.  General  Nature  of  Legislative  Sales  aud  of  the  Statutes 

under  which  they  are  made. 
Sec.  62.  Of  the  Power  of  the  Legislatui-e  to  Provide  for  the  Involuntary 

Sale  of  Property. 
Sec.  63.  The  Constitutionality  of    Special  Laws  Authorizing  Sale   of 

Property  Denied. 
Sec.  G4.  Tlie  Constitutionality  of    Special  Laws  Authorizing  Sale  of 

Property  Sustained.- 
Sec.  65.  Acts  Authorizing  Sales  by  Administrators,  Constitutionality 

Affirmed. 
Sec.  66.  On  whom  Power  of  Sale  may  be  Conferred  by  Special  Acts. 
Sec.  67.  Of  Special  Acts  Authorizing  the  Sale  of  Lands  to  pay  Debts. 
Sec.  68.  Special  Act  need  not  Require  a  Bond  for  the  Application  of  the 

Proceeds. 
Sec.  69.  Acts  Authorizing  the  Sale  of  the  Lands  of  Co-tenants. 
Sec.  70.  Decisions  Limiting  the  Power  of  Legislatures  to  pass  Special 

Laws  for  the  Sale  of  Property. 

Sec.  61.  General  Nature  of  Legislative  Sales  and  the 
Special  Acts  under  loliich  they  are  Made. — A  question  very 
closely  allied  Avith  judicial  sales,  is  that  of  involuntary  sales 
made  by  authority  of  the  legislature,  without  the  assent  of 
the  owner  of  the  property,  and  in  the  absence  of  any  judi- 
cial declaration  concerning  the  necessity  or  propriety  of  the 
sale.  Many  special  statutes  have  been  enacted  purporting 
to  confer  authority  on  guardians,  administrators,  trustees 
and  other  i)ersons  to  sell  and  convey  the  estates  of  their  wards 
or  of  minor  heirs,  or  of  cestuis  que  trust.  Sometimes  entire 
1  rangers  have  ])een  api)ointed  as  commissioners,  and  invested 
with  powers  of  .sale,  (xenerally,  in  statutes  of  this  character, 
the  legislature  assumes  the  existence  of  a  .state  of  facts,  mak- 
ing a  sale  either  necessary  or  expedient ;  and,  therefore, 
8 


114  VOID    JUDICIAL    SALES. 

empowers  some  one  to  make  a  sale,  either  according  to  his 
discretion,  or  in  thi'  manner  and  under  the  circumstances 
designated  in  the  special  statute.  Frequently  bonds  are 
exacted  for  the  purpose  of  avoiding  the  misappropriation  of 
the  funds  to  be  realized.  Often  a  rei)ort  of  the  sale  is  re- 
quired to  be  made  to  some  judicial  tribunal.  The  functions 
of  this  tribunal  are  usually  restricted  to  enquiring  and  de- 
termining whether  the  sale  has  been  conducted  in  conformity 
with  the  special  act.  Whether  the  sale  be  required  to  be 
confirmed  by  some  court  or  not,  it  is  evident  that  the  au- 
thority for  selling  is  purely  legislative.  This  class  of  sales 
may,  therefore,  be  styled  "  legislative  sales." 

Sec.  ^2.  Of  the  Power  of  the  Legislature  to  provide  for 
the  Involuntary  8 ale  of  Property. — There  can  be  no  ques- 
tion of  the  authority  of  the  legislature,  by  general  laws, 
and  in  proper  cases,  to  authorize  the  compulsory  alienation 
of  real  and  personal  property.  The  power  of  the  English 
Parliament  is  absolute.  It  can  regulate  the  succession  to 
the  crown,  or  alter  the  established  religion  of  the  land. 
Theoretically,  at  least,  it  has  uncontrovertible  dominion 
over  both  persons  and  property.  Hence,  it  is  no  cause  for 
wonder  that  "private  acts  of  parliament"  are  recognized 
as  among  the  "assurances  by  matter  of  record."  In  this 
country,  however,  the  legislature  of  every  state  possesses 
an  authority  much  more  restricted  than  that  of  Parliament, 
In  none  of  our  courts  would  a  statute  purporting  to  take 
property  from  one  person  and  vest  it  in  another,  be  treated 
with  any  respect.  The  constitutions  of  most,  and  perhaps 
of  all  of  our  states  vest  the  legislative  and  the  judicial  func- 
tions of  government  in  separate  tribunals,  and  forbid  either 
tribunal  from  encroaching  upon  the  jurisdiction  of  the  other. 
Hence,  a  statute  professing  to  determine  the  conliicting 
claims  of  title  would  l)e  as  inoperative  as  a  statute  directly 
transferring  title  from  one  person  to  another.  But  every 
legislature  possesses  i:)owers  under  which  it  may  enforce  the 
collection  of  debts,  provide  for  the  management  of  the 
property  of  persons  incapable  of  caring  for  themselves,  and 


A'OID    .JUDICIAL    SALES.  115 

also  for  the  partition  of  estates  held  in  co-tenancy.     The 
exercise  of  these  powers  often  involves  the  compulsory  sale 
of  property.     Before  a  debt  can  be  collected  by  legal  com- 
pulsion, its  existence  must  be  determined.     This  determi- 
nation can  be  made  only  by  some  judicial  authority.    Hence, 
a  statute  declaring  that  A  is  indebted  to  B,  or  that  the  lands 
of  A  shall  be  sold  to  pay  the  debts  owing  from  him  to  B, 
is  unquestionably  void,  unless    the   legislature  enacting  it 
was  competent  to  exercise  judicial  functions,  or  the  exist- 
ence of  the  debt  from  A  to  B  is  settled  by  some  judicial 
tribunal.    So,  if  A  should  die,  his  heirs  would  unquestionably 
succeed  to  his  estate,  subject  to  the  right   of  his  creditors 
to  enforce  their  claims  against  the  estate  ;    and  also  subject, 
in  case  of  the  minority  or  other  incapacity  of  the  heirs, 
to  the  power  of  the  government  to  make  the  estate  contri- 
bute to  their  education  or  support.     But  the  existence  of 
debts  against  A  could,  during  his  lifetime,  l)e  established 
only  by  judicial  inquiry.     Does  this    inquiry  become  any 
less  judicial  or  any  more  legislative  in  its  nature  by  reason  of 
A's  death?     So,  in  the  event  that  the  minor  or  other  heirs 
of  A  are  alleged  to  be  in  circumstances  in  which  the  sale  of 
their  estate  is  cither  essential   to  their  support  or  highly 
beneticial  to  their  interests,  the  truth  of  the  allegation  ought 
to  be  determined  in  some  manner  ;  and  this  determination, 
if  it  does  not  invariably   call  for  the  exorcise   of  judicial 
functions,  can  uncpiestionably  be  most  satisfactorily  accom- 
plished through  their  aid.     Hence,  the  compulsory  sale  of 
property  is  usually  governed  l)y  general  laws,  under  which 
the  necessity  and  expediency  of  the  sale  are  made  the  sub- 
ject   of   judicial    iucpiiry,     and    the    authority    to    proceed 
depends   upon   the  judgment  or  order    of   sonu'    judge  or 
court.      Any  departure  iVom  these  general  laws  is  fraught 
with  irrcat  dan<rer,  and  is  likely  to  result  in  inconsiderate 
action,  if  not  in  unmitigated  plunder.    Hence,  in  nearly  one- 
half  of  the  states   of  this  Union,  constitutional  provisions 
directly  inhibit  special  laws  licensing  the  sale  of  the  lands 
of  minors  and  other  persons  under  legal  disability.*^ 

3«Cooley'3  Const.  Lim.,  3(1  ed.,  p.  107,  note. 


1  U)  VOin    JUDICIAL    8ALEa. 

Sec.  (^3.  The  Confi(itntionalil)/  of  Special  Laws  for  the 
Sale  of  Properly  Denied. — In  those  states  whose  constitu- 
tions do  not  directly  forbid  the  enactment  of  special  huvs 
authorizing  one  person  to  sell  the  property  of  another,  such 
laws  have,  when  drawn  in  question  before  the  courts,  been 
assailed  :  1st,  as  contravening  the  spirit  of  constitutional 
provisions  requiring  all  laws  of  a  general  nature  to  have  a 
uniform  operation  ;  2d,  as  in  opposition  to  that  provision  of 
the  Constitution  of  the  United  States,  which  is  also  incor- 
porated in  most  of  the  state  constitutions,  that  no  person 
shall  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law  ;'^^  and,  3d,  as  involving  the  exercise  of 
judicial  functions  not  possessed  by  the  legislature. 

The  House  of  Representatives  of  the  State  of  New  Hamp- 
shire, in  June,  1827,  asked  the  judges  of  the  Supreme  Court 
of  judicature  of  that  state  the  following  question:  "Can 
the  legislature  authorize  a  guardian  of  minors,  by  a  special 
act  or  resolve,  to  make  a  valid  conveyance  of  the  real  estate 
of  his  Avards?"  The  judges  answered  as  follows:  "The 
objection  to  the  exercise  of  such  a  power  by  the  legislature, 
is,  that  it  is  in  its  nature  both  legislative  and  judicial.  It 
is  the  province  of  the  legislature  to  prescribe  the  rule  of 
law  ;  but,  to  apply  it  to  particular  cases,  is  the  business  of  the 
courts  of  law.  And  the  thirty-eighth  article  in  the  bill  of 
rights  declares  that,  '  in  the  government  of  this  state,  the 
three  essential  powers  thereof,  to  wit.,  the  legislative,  exec- 
utive and  judicial,  ought  to  be  kept  as  separate  from,  and 
independent  of  each  other  as  the  nature  of  a  free  govern- 
ment will  admit,  or  as  is  consistent  with  that  chain  of  con- 
nection that  ])inds  the  w'hole  fabric  of  the  constitution  in 
one  indissolu])le  bond  of  union  and  amity,'  The  exercise 
of  such  a  power  by  the  legislature  can  never  be  necessary. 
By  the  existing  laws,  judges  of  probate  have  very  extensive 

'^This  provision  maybe  found  in  both  the  fifth  and  the  fourteenth 
amondnicnts  to  the  Constitution  of  the  United  States,  As  employed  in 
tiie  former,  it  is  a  limitation  on  the  powers  of  the  General  Government 
only.  In  the  latter  amendment,  it  is  designed  as  a  limitation  on  tlie 
powers  of  the  states.    See  citations  numbers  328  and  329. 


VOID    -JUDICIAL    SALES.  117 

jurisdiction  to  license  the  sale  of  the  real  estate  of  minors 
by  their  guardians.  If  the  jurisdiction  of  the  judges  of  pro- 
bate be  not  sufficiently  extensive  to  reach  all  proper  cases, 
it  may  be  a  good  reason  wiiy  that  jurisdiction  should  be 
extended,  but  can  hardly  be  deemed  a  sufficient  reason  for 
the  particular  interposition  of  the  legislature  in  an  individ- 
ual case.  If  there  be  a  defect  in  the  laws,  they  should  be 
amended.  Under  our  institutions  all  men  are  viewed  as 
equal,  entitled  to  enjoy  equal  privileges,  and  to  be  governed 
by  equal  laws.  If  it  be  lit  and  proper  that  license  should 
be  given  to  one  guardian,  under  particular  circumstances, 
to  sell  the  estate  of  his  ward,  it  is  tit  and  proper  that  all 
other  guardians  should,  under  similar  circumstances,  have 
the  same  license.  This  is  the  very  genius  and  spirit  of  our 
institutions.  And  we  are  of  opinion  that  a  particular  act 
of  the  legislature  to  authorize  the  sale  of  the  land  of  a  par- 
ticular minor,  by  his  guardian,  can  not  be  easily  reconciled 
with  the  spirit  of  the  article  in  the  bill  of  rights  just  cited. 

"  It  is  true  that  the  grant  of  such  a  license  by  the  legisla- 
ture to  the  guardian  is  intended  as  a  privilege  and  benefit  to 
the  ward.  But,  by  the  law  of  the  land,  no  minor  is  caj)a- 
ble  of  assenting  to  a  sale  of  his  real  estate  in  such  a  man- 
ner as  to  bind  himself.  And  no  guardian  is  permitted,  by 
the  same  law,  to  determine  when  the  estate  of  his  ward 
ought,  and  when  it  ought  not  to  be  sold.  In  the  contem- 
plation of  the  law,  the  one  has  not  sufficient  discretion  to 
judge  of  the  propriety  and  expediency  of  the  sale  of  his 
estate,  and  the  other  is  not  to  be  intrusted  with  the  power 
of  judging.  Such  being  the  general  law  of  the  land,  it  is 
presumed  that  the  legislature  would  be  unwilling  to  rest  the 
justification  of  an  act  authorizing  the  sale  of  a  minor's  es- 
tate upon  any  assent  which  the  guardian  or  the  minor 
could  giv(!  to  the  proceeding. 

"  The  question,  then,  is,  as  it  seems  to  us,  can  a  ward  be 
deprived  of  his  inheritance,  withoul  Ills  consent,  by  an  act 
of  the  legislature,  which  is  intendi'd  to  a[)[)ly  to  no  other 
individual?     TIk;    fifteenth   article  in    tlie  bill   of  riirhts  de- 


lis  VOID    .lUDlClAL    SALES. 

cliircs  that,  no  subject  shall  be  di>priv(>d  of  his  property 
'  but  by  judgniont  of  liis  peers  or  the  law  of  the  land.' 
Can  an  aet  of  the  1  legislature,  intended  to  authorize  one 
man  to  sell  the  land  of  another  withont  his  consent,  be 
'  the  law  of  the  land,"  within  the  meaning  of  the  constitu- 
tion? Can  it  be  'the  law  of  the  land'  in  a  free  country? 
If  the  question  proposed  to  us  can  be  resolved  into  these 
questions,  as  it  appears  to  us  it  may,  we  feel  entirely  conti- 
dent  that  the  representatives  of  the  people  of  this  state 
will  agree  witli  us  in  the  o])inion  we  feel  ourselves  bound  to 
express  on  the  question  submitted  to  us  : — That  the  legis- 
lature can  not  authorize  the  guardian  of  minors,  by  a  special 
act  or  resolve,  to  make  a  valid  conveyance  of  the  real  estate 
of  his  wards.''**"'' 

The  Supreme  Court  of  the  State  of  Tennessee,  in  the 
year  183li,  delivered  an  opinion  in  full  accord  with  that  of 
the  judges  of  New  Ham[)shire.  In  1825  the  legislature  of 
the  first  named  state  passed  an  act  authorizing  the  guar- 
dians of  certain  minors  therein  specified  to  sell  certain 
lauds  in  the  best  manner  they  could,  and  declaring  that  the 
assets  to  be  produced  by  such  sale  should  be  assets  for  the 
payment  of  the  debts  of  the  ancestor  of  the  minors.  Under 
this  act  a  sale  was  made.  Some  years  afterwards  a  bill  was 
brought  by  the  minors  against  the  grantee  of  the  purchaser, 
to  recover  possession  of  the  lands  sold  and  also  for  an  ac- 
counting for  the  rents  and  profits.  The  legislative  sale  was 
adjudged  void,  because  it  deprived  the  minors  of  their  prop- 
erty without  due  })rocess  of  law,  and  because  the  act  pur- 
porting to  authorize  it  was  a  usurpation  of  the  authority  of 
the  judiciary.'^^'' 

Sec.  64.  Tlie  Constitutionality  of  Special  Laws  author- 
izing Sales  Sustained. — Notwithstanding  the  decisive  stand 
taken  by  the  courts  of  New  Hampshire  and  Tennessee 
against  special  statutes  authorizing  sales  by  guardians,  such 
statutes   have  been  sustained  in  other  states  so  frequently, 

*45  Opinion  of  the  Judges,  4  N.  H.  572. 
-«  Jones  V.  Perry,  10  Yerg.  50. 


VOID     JUDICIAL    SALES.  119 

and  in  such  varying  circumstances,  that  their  constitution- 
ality is  now  almost  free  from  doubt.  In  1792,  Asaph  Rice, 
bv  a  resolve  of  the  ijeneral  court  of  the  commonwealth  of 

»  CI? 

Massachusetts,  was  authorized  to  sell  and  convey  certain 
real  estate  of  which  he  was  tenant  by  courtesy,  and  of  which 
his  children  were  seized  in  fee  of  the  remainder  expectant 
on  the  death  of  their  father.  A  sale  was  made  by  virtue  of 
the  authority  conferred  by  this  resolve.  After  the  death  of 
the  father,  the  children,  by  a  writ  of  entry,  sought  to  re- 
cover their  inheritance.  Parker,  C.  J.,  delivered  the  opin- 
ion of  the  court,  in  the  course  of  which  he  said :  "If  the 
power  by  which  the  resolve  authorizing  the  sale  in  this 
case  was  passed  were  of  a  judicial  nature,  it  would  be  very 
clear  that  it  could  not  have  been  exercised  by  the  legislature 
without  violating  an  express  provision  of  the  constitution. 
But  it  does  not  seem  to  us  to  be  of  this  description  of 
power ;  for  it  was  not  a  case  of  a  controversy  between 
l)arty  and  party ;  nor  is  there  any  decree  or  judgment 
atlecting  the  title  to  property.  The  only  object  of  the  au- 
thority granted  by  the  legislature  was  to  transmute  real  into 
personal  estate,  for  purposes  beneficial  to  all  who  were  in- 
terested therein.  This  is  a  power  frequently  exercised  by 
the  legislature  of  this  state,  since  the  adoption  of  the  con- 
stitution, and  by  the  legislatures  of  the  province  and  of 
the  colony  while  under  the  sovereignty  of  Great  Britain, 
analogous  to  the  power  exercised  by  the  British  Parliament, 
time  out  of  mind.  Indeed,  it  seems  absolutely  necessary 
for  the  interest  of  those  who,  by  the  general  rules  of  law, 
are  incapacitated  froni  disposing  of  their  property,  that  a 
l)()wer  should  exist  somewhere  to  convert  lands  into 
money.  For  otherwise,  minors  might  sulfer,  although  hav- 
ing proj)erty,  it  not  being  in  a  condition  to  yi(!ld  an 
income.  This  jjowcr  must  i-(!st  in  the  legislature  of 
this  commonwealtli,  that  body  being  alone  competent 
to  act  as  the  general  guardian  and  protector  of  those 
who  are  disabled  to  act  for  themselves.  It  was  un- 
doubtedly  wise   to  delegate  the  authority  to  other   bodies, 


120  VOID    JUDICIAL    iSALES. 

•whose  sessions  are  regular  and  constant,  and  whose  struct- 
ure may  enable  them  more  easily  to  understand  the  merits 
of  the  particular  applications  brought  before  them.     But  it 
does  not  follow  that,  because  the  power  has  been  delegated 
by  the  legislature  to  courts  of  law,  it  is  judicial  in  its  char- 
acter.    For  aught  we   see,  the  same  authority  might  have 
been  given  to  the  selectmen  of  each  town,  or  to  the   clerks 
or  registers  of  the  counties,  it  l)eing  a  mere  ministerial  act, 
certainly  requiring  discretion,  and  sometimes  knowledge  of 
the   law  for  its  due  exercise,  but  still  partaking  in  no  de- 
gree of  the  characteristic  of  judicial  power.     No  one  imag- 
ines that,  under  this  general  authority  the  legislature  could 
deprive  a  citizen  of  his  estate,  or  impair  any  valuable  con- 
tract in  which   he  might  be  interested.     But  there  seems  to 
be  no  reason  to  doubt  that,  upon  his  application,  or  the  ap- 
plication of  those  who  properly  represent  him,  if  disabled 
from  acting  himself,  a  beneficial  change  of  his  estate,  or  a 
sale   of  it  for  purposes  necessary  and  convenient   for  the 
lavN'ful  owner,  is  a  just  and   proper  subject  for  the  exercise 
of  that  authority.     It  is,   in  fact,  protecting   him  in  his 
property,    which  the  legislature  is    bound  to   do,  and  en- 
abling him  to   derive   subsistence,   comfort  and   education 
from  property  which  might    otherwise  be  wholly   useless 
during  that  period  of  life  when  it  might  be  most  beneficially 
enjoyed. "^^     If  it  be  conceded  that  an   infant,  lunatic  or 
other  person  incompetent  to  act  for  himself,  is  in  need  of 
ready  money  for  his  sustenance,  or  for  any  other  pressing 
necessity,  of  course  the  conversion  of  his  estate  into  money 
would  be  authorized  by  any  tribunal  having  competent  au- 
thority.    Legislative  licenses  authorizing  a  sale  under  such 
circumstances  are  generally  sustained. ^"^^    Nor  is  any  neces- 
sity required  to  support  the    exercise    of   this   legislative 
authority.     It  seems  to  be  sufficient  that  the  sale  is  one  to 
which  the  incompetent  person  might,  if  sui  juris,  probably 
give  his  assent.     Hence,  a  special  statute  may  be  supported 

347  Rice  V.  Parbman,  16  Mass.  329. 
3«  Stewart  v.  Griffith,  33  Mo.  23. 


VOID    JUDICIAL    SALES.  121 

if,  without  any  apparent  necessity,  it  sanctions  tlie  conver- 
sion of  real  into  personal  estate.  This  conversion  is  pre- 
sumed to  be  beneficial  to  the  minor,  or,  at  least,  not  to  be 
a  destruction  of  his  rights  of  property.**^  Acts  have  been 
sustained  which  authorized  guardians  to  convey  lands  sold 
by  the  ancestor  of  their  wards  f^  or  which  empowered  the 
guardian  of  a  lunatic  to  sell  the  lands  of  the  latter  to  pay 
off  an  incumbrance  thereon  ;^^  or  which  authorized  ii:uardians 
to  convey  real  estate  for  the  purpose  of  effecting  a  com- 
promise with  persons  claiming  adversely  to  the  minors.^^^ 
The  case  last  cited  determined  the  constitutionality  of  an 
act  passed  by  the  legislature  of  Missouri  in  the  year  1847. 
This  act  recited  that  certain  adverse  claims  existed  to  a 
tract  of  land  in  the  City  of  St.  Louis;  that  the  parties  in 
interest  had  agreed  upon  a  compromise,  to  accomplish 
which,  mutual  deeds  of  quit-claim  were  essential  ;  and  then 
the  act  authorized  the  gu.irdians  of  designated  minors  to 
execute  the  conveyances  necessary  to  consummate  the  com- 
promise. Such  a  conveyance  was  executed,  and  was  upheld, 
though  it  was  subsequently  ascertained  that  the  minor's  title 
was  valid  and  that  of  the  adverse  claimants  unfounded, — the 
court  saying  :  "  It  is  a  question  of  power,  and  whilst  it  is 
conceded  that  the  legislature  has  no  power  to  transfer  A's 
property  to  B,  or  to  authorize  any  one  else  to  do  so — sup- 
posing A  and  B  to  be  adults  and  competent  to  transact  their 
own  allairs — the  legislature  may  authorize  the  guardian, 
father  or  mother  of  a  lunatic,  infant  or  idiot,  to  transfer  the 
estate  of  the  minor,  lunatic,  or  idiot.  It  will  Ix;  observed 
that  the  title  of  Pelagic,  and  her  daughter  Antoinette,  was  a 
disputed  one;.     That  the  claimants  under  Mackay  and  Kut- 

*«9  CiiToll  V.  OlmstoiuJ,  KJ  Oh.  251;  Dorsey  v.  Gilbert,  11  G.  &  J.  87; 
Davis  V.  Ilelbif?,  27  Md.  452;  Tiiurston  v.  Tiiurston,  (J  K.  I.  2'JG;  Siiow- 
hill  V.  Snowhill,  :i  N.  .T.  Eq.  20;  Breiihum  v.  Davidson,  51  Cal.  :{52; 
Soiiicr  V.  Mass.  Gciri  Hospital,  '.\  Cusli.  -liS:};  Xorris  v.  Clyiiicr,  2  Pa.  iSt. 
284;  Clarke  v.  Van  Siirlay,  15  Wend.  430. 

^^>  Estep  v.  Ilntchnian,  14  S.  &  K.  435. 

"Wi  Davison  v.  .Tolionnot,  7  Met.  388. 

3-w  Thomas  v.  I'ullis,  5tj  Mo.  217. 


\-22  VOID    JUDICIAL    SALES. 

jrors,  reallv  bad  no  valid  title,  is  not  important.  This  was 
ascertained  after  the  decision  of  this  court,  in  the  case  of 
Norcum  v.  D'Oench,  but  it  was  a  matter  of  conjecture  be- 
fore. The  adults  had  an  undoubted  right  to  compromise. 
If  the  legislature  has  power  to  authorize  third  i)ersons, 
guardians,  fathers,  mothers,  etc.,  to  convey  the  undisputed 
title  of  an  infimt,  without  regard  to  insuring  the  proceeds 
for  the  benefit  of  the  infant,  Avhy  should  they  be  deprived 
of  the  right  to  authorize  the  compromise  of  an  unsettled 
claim  ?"^^ 

Sec.  65.  Acts  authorizing  Sales  hy  Administrators;  Con- 
stitutionality of,  Affirmed. — The  cases  cited  in  the  preceding 
section  affirmed  the  constitutionality  of  laws  authorizing 
sales  to  be  made  by  the  guardians  or  parents  of  persons  in- 
capable of  acting  for  themselves.  We  shall  now  refer  to 
cases  involving  the  legislative  delegation  of  a  like  authority 
to  administrators.  The  weight  of  the  authorities  is  to  the 
effect  that  the  power  may  be  conferred  on  an  administrator 
as  well  as  on  a  parent  or  guardian  .^^  In  considering 
the  validity  of  a  sale  made  under  an  act  of  this  character, 
the  Supreme  Court  of  the  United  States  said:  "On  prin- 
ciple, this  process  is  sustainable.  On  the  death  of  the  ances- 
tor, the  land  owned  by  him  descends  to  his  heirs.  But  how 
do  they  hold  it?  They  hold  it  subject  to  the  payment  of  the 
debts  of  the  ancestor,  in  those  states  where  it  is  liable  to 
such  debts.  The  heirs  cannot  alien  the  lands  to  the  preju- 
dice of  the  creditors.  In  fact  and  in  law,  they  have  no 
right  to  the  real  estate  of  their  ancestors,  except  that  of 
possession,  until  the  debts  shall  be  paid.  As  it  regards  the 
question  of  power  in  the  legislature,  no  ol)jection  is  per- 
ceived to  their  subjecting  the  lands  of  the  deceased  to  the 
payment  of  liis  debts,  to  the  exclusion  of  his  personal 
property.     The  legislature  regnlates  descents  and  the  con- 

353  Thomas  v.  Pullis,  50  Mo.  217. 

3MDoe  V.  Douglas,  8  Blackf.  10;  Kibby  v.  Chitwood,  4  Monr.  91;  Wil- 
liamson V.  Williamson,  3  S.  &  M.  715,  745;  Gannett  v.  Leonard,  47  Mo. 
205;  Holman's  Heirs  v.  Bank  of  Norfolk,  12  Ala.  369,  415. 


VOID    JUDICIAL    SALES.  123 

veyance  of  real  estate.  To  define  the  rights  of  debtor  and 
creditor,  is  their  common  duty.  The  whole  range  of  reme- 
dies lies  within  their  province.  They  may  authorize  a 
fifuardian  to  convev  the  lands  of  an  infant ;  and  indeed  they 
may  give  capacity  to  the  infant  himself  to  convey  them.  The 
idea  that  the  lands  of  an  infant  which  have  descended  to  him 
can  not  be  made  responsible  for  the  payment  of  the  debts  of 
the  ancestor,  except  through  a  decree  of  a  court  of  chan- 
cery, is  novel  and  unfounded.  So  far  from  this  being  the 
case,  no  doul)t  is  entertained  that  the  legislature  of  a  state 
have  the  power  to  subject  the  lands  of  a  deceased  person 
to  execution  in  the  same  manner  as  if  he  were  living.  The 
mode  in  which  this  shall  be  done  is  a  question  of  policy,  and 
rests  in  the  discretion  of  the  legislature.  The  law  under 
which  the  lot  in  dispute  was  sold  decides  no  fact  binding  on 
creditors  or  heirs.  If  the  administratrix  and  Brown  have 
acted  fraudulently  in  procuring  the  passage  of  this  act,  or 
in  the  sale  under  it,  relief  may  be  given  on  that  ground. 
But  the  act  does  nothing  more  than  provide  a  remedy, 
w4iich  is  strictly  within  the  power  of  the  legislature. ^^^ 

Sec.  66.  On  tvhom  Poivev  of  Sale  may  be  Conferred  by 
Special  Acts. — It  does  not  appear  to  be  necessary  that  the 
person  authorized  by  a  special  act  of  the  legislature  to  sell 
the  property  of  another,  shouUl  be  an  administrator  or 
guardian  by  regular  appointment  of  the  courts  of  the  state 
whore  the  sale  is  to  l)c  made,  nor  indeed  that  he  should 
liave  any  official  character  whatever,  nor  that  he  should  be 
a  relative  of  1  he  jxtsou  for  whom  he  is  authorized  to  act. 
His  authority  rests  on  the  special  act,  and  not  on  his  other 
relations  with  the  inc()ni[)etent  person.  The  legislature  of 
the  state  wherein  the  land  lies  may  authorize  its  sale  and 
convevance  by  an  adjninistrator  residing  and  appointed  in 
another  state  oi-  by  her  attorneys.''''"  In  Kentucky,  an  act 
was  sustained   which,  after  reciting   tiiat    no  one  would   ad- 

'■'"'>  Watkins  v.  Ilolmim.  li;  r<t.  (i2. 

•!'■«  Ilolnian'.s  Heirs  v.   Bank  of  Norfolk,  12  Ala.  369,415;  Watkins  V. 
lloltiiaii,  10  Pet.  25;  IJoon  v.  Bowers,  :il)  Mis.s.  240. 


12  4  VOID    JUUICIAL    SALES. 

minister  of  the  esttitc  of  a  deceased  person,  appointed  three 
oonnnissioncrs  with  power  to  sell  so  much  of  siu!h  estate  as 
would  be  necessary  to  pay  his  debts.''"     An  act  of  the  lei^- 
is^lature  of  California,  approved  May  6,  18()1,  purported  to 
authorize  Mary  Ann  Paty  Daley,  the  mother  and  guardian 
of  Francis  William  Paty,  a  minor,  to  sell  any  or  all  of  his 
real  estate.     In  November,  prior  to  the  passage  of  this  act, 
Mrs.  Daley  had  been  appointed  guardian  of  her  son  by  the 
probate  judge  of  Plymouth  County,  in  the  State  of  Massa- 
chusetts.    In  May,  1856,  she  received  a  like  appointment 
from  the  chief  justice  of  the   Hawaiian  Islands.     She  was 
never  appointed  guardian   in  California.     She   made  sales 
and  conveyances  under  this  act.     These  sales  were  declared 
void,  not  on  the  ground  that  the   statute  was  unconstitu- 
tional, but  because  she  had  never  been  appointed  guardian 
in   California.     "  The   statute,"  said  the  court,  "  does  not 
purport,  in  any  part  of  it,  to  nominate  Martha  Ann  Paty 
Daley  guardian  of  the  infant ;  it  simply  assumes  that  she  is, 
or — when  the  sale   shall  be  made — will  be  guardian  of  his 
estate  ;  exercising  the  ordinary  functions,  and  charged  with 
the  ordinary  responsibilities  of  guardians.     The  power  was 
given  t©  her  in  her  capaeity  as  guardian,  and  not  as  an  in- 
dividual ;  as   she  failed  to   secure  an  appointment  as  guar- 
dian, the  attempted  sale  was  void."^^*    Frequently  property 
is  vested  in  trustees  for  the  benefit  of  persons  incapable  of 
acting  for  themselves.     When  this  is  the  case,  the  legisla- 
ture may  authorize  sales   and   conveyances  to  the  same  ex- 
tent as  when  property  is  in  the  hands  of  administrators  or 
guardians.     In  1802,  Mary  Clark  devised  certain   lands  to 
Benjamin  Moore,  and  two  other  persons,  in  trust :     1st.  To 
receive  the  rents,  issues  and  profits  thereof,  and  pay  the 
same  to  Thomas  B.  Clarke  during  his   life  ;  2d.  After  the 
death  of  Thomas   B.  Clark,  to   convey  the  premises  to  his 
lawful  issue  in  fee  ;  3d.  If  he  should  not  have  lawful  issue, 
then  to  convey  the  premises  to  Clement  C.  Moore.  In  1814, 

357  Shehan's  Heirs  v.  Barnett's,  G  Monr.  593. 

358  Paty  V.  Srnitli,  '>0  Cul.  159. 


VOID    JUDICIAL    SALES.  125 

the  legislature,  upon  the  petition  of  Thomas  B.  Clarke,  and 
with  the  concurrence  of  the  trustees  named  in  the  will,  and 
of  Moore,  the  contingent  remainder-man,  passed  an  act  au- 
thorizing the  sale  of  a  portion  of  the  real  estate  for  the  pur- 
pose of  creating  an  income  for  the  ])enefit  and  support  of 
Thomas  B.  Clarke,  his  family  and  children  ;  the  principal, 
after  his  death,  to  be  paid  according  to  the  trusts  in  the  will 
of  Mary  Clarke.  In  1815,  a  funher  act  was  passed  reciting 
that  Moore,  the  contingent  remainder-man,  had  convcA^ed 
his  interest  to  Thomas  B.  Clarke,  and  "  authorizing  Clarke 
to  do  and  perform  every  act  in  relation  to  the  property 
which  the  act  of  1814  had  directed  might  be  performed  bv 
trustees  to  be  appointed  by  the  chancellor ;  but  no  sale 
was  to  be  made  1)y  Clarke  until  he  procured  the  assent  of 
the  chancellor  ;  and  when  a  sale  was  made,  the  proceeds  were 
to  be  invested,  and  an  annual  account  of  the  principal  ren- 
dered, but  the  interest  Chirke  was  authorized  to  apply  to  his 
oion  use  and  benefit,  and  for  the  maintenance  and  education 
of  Jiis  children.'''  Sales  were  made  under  these  acts.  The 
constitutionality  of  these  acts  was  discussed  in  the  highest 
courts  of  the  state  and  of  the  nation,  and  was  alwavs  sus- 
tained. It  was  held,  1st,  that  it  was  competent  for  the 
legislature  to  change  the  trustees  appointed  by  the  will  of 
Mrs.  Clarke,  and  to  vest  their  powers  in  Thomas  B.  Clarke  ; 
2d,  that  it  was  equally  within  the  power  of  the  legislature  to 
provide  for  the  sale  of  the  interest  of  the  children  of  Clarke, 
in  order  that  they  might  at  once  have  the  benefit  of  the 
estate  for  their  better  support  and  education  during  the 
most  helpless  period  of  their  lives. ^^^  The  litigation  aris- 
ing under  the  will  of  Mrs.  Clarke  and  these  special  acts  of 
the  legislature  was  carried  on,  in  various  courts  and  forms, 
during  nearly  half  a  century  ;  and  has  occasioned  the  most 
exhaustive  discussions,  both  of  th(!  power  of  the  legislatures, 
by  special  acts,  to  authorize  the  sale  of  the  ])ropcrty  of  per- 
sons incaj)abl('  of  acting  for  themselves,  and  of  the  nature 

•t''y  Clarke  v.  Van  Surlay,  !.">  Wciid.  4:50;   Leggclt  v.  lliiiitcr,  ]!»  N.  Y. 
445. 


120  VOID    JUDICIAL    SALES. 

aiul  cUcot  of  such  sales  when  conducted  under  the  super- 
vision of  judicial  authority.'"'^  The  power  which  is  competent 
to  change  trustees  and  provide  for  the  sale  of  property  in 
which  infants  are  interested,  can  deal  with  like  cificiency 
with  i)roperty  given  for  the  purposes  of  charity  f^^  or  which 
is  vested  in  trustees,  or  other  persons,  for  the  ])enefit  of 
persons  not  in  esse.^'^ 

Sec.  67.  Of  Special  Acts  authorizing  the  Sale  of  Lands 
to  Pay  Debts. — As  the  estate  of  an  ancestor  descends  to  his 
heirs  subject  to  the  right  of  the  creditors  of  the  former  to 
compel  such  estate  to  contribute  to  the  pa3nnent  of  their 
claims,  a  special  act  to  authorize  the  sale  of  property  for 
the  payment  of  such  claims  seems  to  be  one  of  the  most 
defensible  acts  of  special  legislation  ;  and  so  it  is,  if  the 
validity  and  existence  of  the  claims  be  conceded.  But 
special  acts  to  raise  funds  for  the  payment  of  debts  have 
been  more  persistently  and  plausibly  assailed  than  acts  for 
any  other  purpose  short  of  ostensible  confiscation.  If  such 
an  act  is  so  expressed  as  to  preclude  the  parties  in  interest 
from  disputing  the  validity  of  the  debts,  it  is  unquestionably 
void,  because  it  is  a  usurpation  of  judicial  authority.  In 
1827,  the  Legislature  of  Illinois,  by  a  special  act,  author- 
ized John  Lane  to  sell  so  much  of  the  lands  of  the  late 
Christopher  Robinson,  deceased,  as  should  prove  sufficient 
to  raise  the  sum  of  $1,008.87,  and  interest  and  cost  of  sale. 
The  proceeds  of  the  sale  were  to  be  applied  to  the  extin- 
guishment of  the  claims  of  said  Lane  and  one  John  Brown 
for  moneys  advanced  and  liabilities  incurred  on  account  of 
Robinson's  estate.  This  act  was  held  to  be  clearly  be- 
yond the  authority  of  the  legislature,  because  the  existence 

360  Clarke  v.  Van  Surlay,  15  Wend.  436;  Sinclair  v.  Jaclison,  8  Cowen, 
543;  Cochran  v.  Van  Surlay,  20  Wend.  365;  Williamson  v.  Berry,  8  How. 
U.  S.  495;  Towle  v.  Forney,  14  N.  Y.  423;  Williamson  v.  I.  P.  Congre- 
gation, 8  IIow.  U.  S.  565;  Suydam  v.  Williamson,  24  How.  U.  S.  427; 
Williamson  V.  Ball,  8  IIow.  U.  S.  566;  Williamson  v.  Suydam,  6  Wall^ 
723. 

361  Matter  of  Trustees  N.  Y.  P.  E.  Pub.  School,  31  N.  Y.  592. 

362  Matter  of  Bull,  45  Barb.  334;  Leggett  v.  Hunter,  19  N.  Y.  445. 


1 


VOID    JUDICIAL    SALES.  127 

of  the  indebtedness  from  Robinson's  estate  to  Brown  and 
Lane,  and  the  conseqnent  right  of  Brown  and  Lane  to  sat- 
isfaction out  of  the  proceeds  of  the  estate,  could  only  be 
ascertained  as  the  result  of  a  judicial  investigation,  which 
the  legislature  was  incompetent  to  conduct.  The  act  was 
also  thought  to  contravene  the  constitutional  provision,  that 
"no  freeman  shall  be  disseized  of  his  freehold,  but  by  the 
judgment  of  his  peers,  or  the  law  of  the  land."^^  The  Su- 
preme Court  of  Illinois  has  now  taken  a  position  far  in 
advance  of  that  assumed  in  the  case  just  cited,  and  will  not 
tolerate  any  special  legislation  authorizing  the  conveyance 
of  real  estate  to  pay  debts,  unless  such  debts  have  tirst  been 
judicially  established.  In  1823,  the  legislature  of  that  state 
authorized  John  Rice  Jones,  administrator  of  Thomas  Brad}'^, 
deceased,  to  sell  and  convey  lands,  the  proceeds  to  be 
assets  in  the  hands  of  the  administrator,  to  be  appropriated 
to  the  payment  of  the  debts  of  the  deceased,  and  the  bal- 
ance, if  any,  to  be  distributed  between  his  children.  Of  this 
act,  and  a  sale  made  by  its  authority,  the  court  said  :  ' '  When 
the  act  in  question  was  passed,  and  when  the  land  was  sold, 
the  title  was  in  the  heirs  of  Brady,  subject  to  be  divested, 
if  necessary,  for  the  payment  of  his  debts.  But  the  legis- 
lature had  no  more  right  or  power  to  assume  that  he  died 
owing  debts,  and,  on  that  assumption,  to  authorize  his  ad- 
ministrator to  sell  lands  vested  in  his  heirs,  for  the  purpose 
of  holding  the  proceeds  as  assets,  without  any  judicial  in- 
quiry as  to  the  existence  of  such  debts  before  executing  the 
j)0wcr,  than  it  would  have  had,  in  his  lifetime,  the  right  or 
power  to  authorize  the  sheriff  of  the  county  where  he  lived 
to  sell  his  land,  and  hold  the  proceeds  for  the  payment  of 
whatever  debts  he  might  owe."*^  The  conclusion  here  an- 
nounced is  one  which,  ui)on  })rinciple,  meets  our  full  con- 
currence. But  we  understand  the  decided  prej)onderance 
of  the  authorities  to  be  in  fuvoi-  of  sustaining  special  acts 

■■'''^  Lane  v.  Dorinan,  3  Scam.  238,  followed  in  Dubois  v.   McLeiin,    1 
McLean,  48G. 
'■^^  Rozicr  V.  Fa;,':ui,  Ki  111.  40.^;  Davenport  v.  Youn<r,  16  111.  548. 


128  VOID    .TUDICIAI,    SALKS. 

authorizing  sales  for  the  paymciil  ol"  the  debts  of  the  de- 
deased  ow  ncr  of  i)roperty,  even  in  advance  of  the  judicial 
ascertainment  oi"  such  debts,  provided  the  act  leaves  the 
existence  of  such  debts  open  lo  iniprny.'"^' 

Sec.  (5<S.  Special  Act  need  not  require  a  Bond  for  the 
Application  of  the  Proceedx. — Special  acts,  authorizing  the 
sale  by  one  person  of  the  property  of  another,  generally 
contain  precautionary  provisions  tending  to  secure  the  hon- 
est exercise  of  the  authority  conferred.  Bonds  are  usually 
exacted,  conditioned  for  the  proper  api)ropriation  of  the 
proceeds  of  the  sale.  By  this  means,  the  interests  of  heirs 
and  creditors  are  exempted  from  needless  peril.  These 
precautions  seem  not  to  be  essential  to  the  validity  of  the 
act.  The  question  is  one  of  power.  The  existence  of  the 
power  being  established,  the  propriety  of  its  exercise  rests 
solely  with  the  legislature.  If,  through  misplaced  confi- 
dence or  reckless  inattention  to  the  dulies  of  its  trust,  the 
legislature  confers  the  power  of  sale  on  a  person  who,  being 
required  to  furnish  no  security,  squanders  the  proceeds  of 
the  sale,  and  thus  defrauds  the  heirs  of  their  inheritance 
and  the  creditors  of  their  means  of  enforcing  payment,  the 
sale  is  not,  on  that  account,  invalid.^'^^ 

Sec.  69.  Acts  for  the  8 ale  of  the  Lands  of  Co-tenants. — 
The  power  of  the  legislature  to  authorize,  by  general  laws, 
the  sale  of  the  lands  of  co-tenants  for  the  purposes  of  par- 
tition, where  the  necessity  of  the  sale  is  judicially  deter- 
mined, is  unquestionable.^"  So,  there  is  little  or  no  doubt  of 
the  constitutionality  of  a  special  act  authorizing  a  co-tenant 
to  petition  a  court  of  competent  jurisdiction  for  the  sale  of 
the  lands  of  a  co-tenancy,  and  also  authorizing  the  court, 
upon  Ijeing  satisfied  that  a  division  of  the  property  among 
the  co-tenants  is  extremely  difficult,  if  not  impracticable,  to 

-365Watkins  v.  Holman,  16  Pet.  25;  Davison  v.  Johoniiot,  7  Met.  388; 
Shehan's  Heirs  v.  Barnett's,  6  Mour.  593 ;  Holman's  Heirs  v.  Bank  of 
Norfolk,  12  Ala.  369;  Kibby  v.  Chitwood,  4  Monr.  91;  Williamson  v. 
Williamson,  3  S.  &  M.  715,  745. 

3€6  Gannett  v.  Leonard,  47  Mo.  205;  Thomas  v.  Pullis,  56  Mo.  218. 

367  Freeman  on  Co-Tenancy  and  Partition,  540. 


VOID    JUDICIAL    SALES.  129 

order  a  sale  of  the  premises  and  a  division  of  the  proceeds 
among  the  parties  in  interest.^*^  Such  an  act  leaves  the  ne- 
cessity and  erspediency  of  the  sale  to  be  determined  by  the 
judiciary.  Special  acts  which  do  this  are  free  from  consti- 
tutional objections,  except  in  those  states  whose  constitu- 
tions forbid  special  legislation. ^*^^  In  Pennsylvania,  an  act 
was  sustained  which  empowered  one  of  several  heirs,  with- 
out the  aid  of  any  judicial  proceedings,  to  sell  the  lands 
descended  from  their  common  ancestor  and  divide  the  pro- 
ceeds among  the  co-heirs  ;^™  and  a  decision,  similar  in  spirit, 
has  been  made  in  Massachusetts.^^ 

Sec.  70.  Decisions  limiting  the  Power'  of  Legislatures  to 
pass  /Special  Laws  for  the  Sale  of  Property. — We  shall 
now  call  attention  to  decisions  which,  though  pronounced 
by  courts  which  concede  the  power  of  a  legislature  to  pass 
special  acts  authorizing  the  sale  of  property,  prescribe 
limits  beyond  which  the  power  is  not  recognized.  In  1831, 
Thomas  Poole  devised  his  real  estate  to  his  executors  in 
trust :  1st,  to  permit  his  daughter,  Eliza,  to  occupy  the  same 
and  take  the  rents  and  profits  thereof  during  her  natural  life  ; 
2d,  upon  her  death,  the  lands  were  to  vest  in  her  lawful 
issue,  and,  in  default  of  such  issue,  then  in  all  the  testator's 
surviving  grand-children.  By  special  acts,  passed  in  1837 
and  1849,  the  executors  were  authorized  to  sell  and  convey 
the  real  estate,  and,  with  the  proceeds,  to  pay  all  charges 
and  assessments  against  the  land,  and  also  the  costs  of  sales 
and  conmiissions.  The  surplus  was  then  to  be  disposed  of 
in  the  manner  specified  in  the  will  for  the  disposition  of  the 
real  estate.  A  sale  was  made  under  these  acts.  A  case  was 
then  agreed  upon  and  submitted,  for  the  purpose  of  ascer- 
taining whether  the  purchaser  could  ac(|uir('  a  valid  title. 
It  ap[)earcd  that  the  daughtci-,  lOli/a,  was  still  living,  and 
that  she  had  two  children.      The  act   Wiis   hehl    unconstitu- 

•^''^  F^dwanls  v.  Pope,  '.$  Sc:irii.  [i\'u 
■'^J  Florcntiiio  v.  IJartoii.  2  \Vall.  210. 
•iTo  Fullerton  v.  McArtliiir,  1  Grunt's  Ca.  2:52. 
•'"  Soheir  v.  Mas.''.  Genl.  Hospital.  W  Cusli.  483. 
9 


ir^O  VOID    JUDICIAL    SALES. 

tional  u\H)n  groinuls  which  are  not  stated  in  the  opinion  of 
the  i-onrt  with  suiHc-ient  ck'tirness  to  cn:il)U>  us  to  feel 
c-ontidont  th:it  we  correctly  understiind  thcni.  Wc  judue, 
however,  that  the  reasoninu;  controlling  the  decision  of  the 
court  was  substantially  this  :  No  necessity  existed  for  the 
sale  ;  there  wore  no  charges,  liens  or  assessments  against 
the  property  ;  and  no  infancy  or  other  necessity  shown  as 
to  the  parties  interested  under  the  will  ;  and  that,  under 
these  circumstances,  the  acts  authorized  the  taking  of  prop- 
erty from  one  person  and  transferring  it  to  another  Avithout 
any  reason.'^"  Whether  the  children  of  Eliza,  "who  had 
a  vested  remainder  in  fee,  in  the  premises  in  question,  as 
tenants  in  common,  subject  to  open  and  let  in  after-born 
issue  of  their  mother  as  tenants  in  common  witii  them,  and 
liable,  however,  to  be  divested  by  their  deaths  during  the 
lifetime  of  their  mother,"  were  minors  or  adults,  the  report 
of  the  case  very  singularly  omits  to  mention.  The  follow- 
ing reasoning  of  the  court,  in  this  case,  tends  very  strongly 
toward  the  overthrow  of  all  legislation  anthorizing  the 
transfer  of  the  property  of  one  person  by  another,  without 
any  imperative  necessity,  and  without  the  assent  of  the 
owner:  "  If  the  power  exists  to  take  the  property  of  one, 
without  his  consent,  and  transfer  it  to  another,  it  may  as 
well  be  exercised  without  making  any  compensation  as  with 
it ;  for  there  is  no  provision  in  the  constitution  that  just 
compensation  shall  be  made  to  the  owner  when  his  property 
shall  be  taken  for  private  use.  The  power  of  making  con- 
tracts for  the  sale  and  disposition  of  private  [)roperty  for 
individual  owners,  has  not  been  delegated  to  the  legishiture 
or  to  others,  through  or  by  any  agency  conferred  on  them 
for  such  purpose  by  the  legislature  ;  and  if  the  title  of  A 
to  property  can,  without  his  fault  or  consent,  be  transferred 
to  B,  it  may  as  well  be  effected  without  as  with  consider- 
ation."^'^ 

In  California,  it  is  settled  that  the  legislature  can  not  au- 

372  Powers  V.  Bergen,  6  N.  Y .  358.     See  Leggett  v.  Hunter,  19  N.Y.  445. 

373  Powers  V.  Bergen,  G  N.  Y.  307. 


1 


VOID    JUDICIAL    SALES.  131 

thorize  an  administrator  to  sell,  at  his  discretion,  the  lands 
of  his  intestate,  as  in  his  jiidginent  will  best  promote  the 
interest  of  those  entitled  to  the  estate.  In  this  case,  the 
heirs  of  the  deceased  consisted  of  his  widow  and  minor 
children.  "We  make  the  following  quotations  from  the  opin- 
ion of  the  court :  "  It  is  undou1)tcdly  Avithin  the  scojDe  of 
legislative  authority  to  direct  that  the  dehts  be  paid  from 
the  realty  instead  of  the  personal  propert}^ ;  or,  as  is  dane 
in  some  states,  that  the  heir  need  not  be  made  a  party  to 
the  proceeding  to  obtain  a  sale  of  the  real  estate,  or  that  the 
administrator  may  sell  without  any  order  of  the  court  what- 
ever. But  all  these  acts  must  be  for  the  satisfaction  of 
these  liens,  which  are  held  to  be  paramount  to  the  claims  of 
the  heirs  or  devisees. 

"  Laws  which  prescribe  the  manner  in  which  these  para- 
mount claims  shall  be  satisfied,  are  held  to  be  entirely 
remedial ;  and  it  is  upon  this  ground  that  the  courts  have 
upheld  acts  authorizing  the  administrator  to  sell  at  private 
sale,  or  in  some  mode  not  provided  in  the  general  law,  the 
land  of  a  deceased  person.  Such  acts  have  been  uniformly 
held  valid  where  it  appeared  to  be  in  execution  of  these 
liens,  and  the  act  was  not  liable  to  the  objection  that,  in 
passing  it,  the  legislature  usurped  judicial  functions,  as,  for 
instance,  in  directing  a  sale  to  pay  a  particular  de])t,  thereby 
ascertaining:  the  existence  of  a  debt  by  legislative  enactment. 

"In  all  the  cases  to  which  our  attention  has  been  called 
))y  the  plaintiff,  the  decision  was  put  upon  this  ground.  The 
(hity  of  an  administrator  is  to  take  charge  of  the  estate  for 
the  purpose  of  scttbng  the  claims,  and  when  they  have  l)een 
satisfied,  it  is  his  duty  to  pass  it  over  to  the  heir,  whose  ab- 
solute propei-ty  it  then  becomes.  To  allow  the  administra- 
tor to  sell,  to  promote  the  interests  of  those  entitled  to  the 
estate,  would  be  to  pass  beyond  the  functions  of  an  admin- 
istrator, and  constitute  him  the  forced  agent  of  the  living 
for  the  management  of  their  estates. 

"  In  this  case  it  does  iiol  appear,  from  the  proceedings  iji 
the  probate  court  upon  the  sale,  that  there  were  any  de1)t< 


ll\'2  VOID    JUDICIAL    SALES. 

of  the  deceased  at  the  time  of  the  sale,  nor  does  it  appear 
that  the  sale  was  to  raise  money  for  the  support  of  tlie 
family,  or  to  pay  the  expenses  of  administration.  The 
special  act  does  not  purport  to  authorize  a  sale  for  the  pay- 
ment of  the  dehts,  allowances  to  the  family,  or  expenses  of 
administration  ;  on  the  contrary,  it  expressly  authorizes  a 
sale  for  the  purpose  of  speculating  in  the  interest  of  the 
owners  of  the  property — that  is,  the  heirs.  It  provides 
that  the  administrator  may  sell,  at  his  discretion, '  the  whole 
or  any  part  of  the  real  estate,  or  an}'  right,  title  or  interest 
therein  claimed,  held  or  owned  by  the  said  Charles  White  at 
the  time  of  his  death,  as  in  the  judgment  of  the  adminis- 
trator will  best  promote  the  interest  of  those  entitled  to  the 
estate.'  The  probate  judge  ma}^  confirm  or  set  aside  the 
sale,  as  he  may  deem  just  and  proper  and  for  the  best 
interests  of  the  estate. 

"  Upon  the  death  of  the  ancestor  the  heir  becomes  vested 
at  once  with  the  full  property,  subject  to  the  liens  we  have 
mentioned  ;  and,  subject  to  these  liens  and  the  temporary 
right  of  possession  of  the  administrator,  he  may  at  once 
sell  and  dispose  of  the  property,  and  has  the  same  right  to 
judge  for  himself  of  the  relative  advantages  of  selling  or 
holdino-  that  any  other  owner  has.  His  estate  is  indefeas- 
ible  except  in  satisfaction  of  these  prior  liens,  and  the  legis- 
lature has  no  more  right  to  order  a  sale  of  his  vested  interest 
in  his  inheritance,  ])ecause  it  will  be,  in  the  estimation  of  the 
administrator  and  the  probate  judge,  for  his  advantage,  than 
it  has  to  direct  the  sale  of  the  property  of  any  other  per- 
son acquired  in  any  othei-  way.  *  *  It  is  not  contended  that 
the  legislature  has  the  power  to  direct  the  sale  and  convey- 
ance of  private  property  for  other  than  public  uses.  This 
question  was  fully  considered,  however,  by  us  in  Shernuin 
V.  Buick,'^'*  and  decided  in  the  negative,  and  that  conclusion 
is  fully  sustained  by  the  numerous  authorities  cited  by  the 
defendant.  "3^-^ 

374  32  Cal.  241. 

•"•5  Brenham  v.  Storv.  39  Cal.  185. 


VOID    JUDICIAL    S^VLES.  133 

We  are  iinal)le  to  concur  with  the  Supreme  Court  of  Cali- 
fornia in  the  opinion  foreshadowed  in  Brenham  v.  Story, 
and  adopted  in  Brenham  v.  Davidson,^"'^  that  the  power  of 
the  legishiture  to  confer  authority  on  guardians  is,  where 
the  persons  in  interest  are  not  sui  juris,  any  more  ample 
than  its  power  to  confer  like  authority  in  a  like  case  on  ad- 
ministrators. If  the  legislature  has  the  power  to  authorize 
sales,  we  can  not  conceive  that  it  is  limited  in  the  choice  of 
agents  to  execute  the  power.  It  is  true  that  the  duties  of 
administrators  and  sruardians  are  somewhat  different  under 
the  general  laws  in  force  in  most  of  the  states.  But  when 
a  special  act  is  passed,  the  power  to  be  exercised  is  dele- 
gated and  prescribed  by  the  special  act,  and  not  by  the 
general  law.  The  power  of  the  agent  is  not  therefore  lim- 
ited by  the  fact  that,  before  the  passage  of  the  act,  he  was 
an  administrator,  and,  as  such,  had  no  authority  under  the 
general  law  to  make  a  sale  when,  in  his  discretion,  he 
thought  best.  Special  acts  authorizing  sales  are  maintain- 
able, if  at  all,  because,  in  the  language  of  Chancellor  Wal- 
worth, "It  is  within  the  power  of  the  legislature,  as  parens 
patrke,  to  prescribe  such  rnles  and  regulations  as  it  may 
deem  proper  for  the  superintendence,  disposition  and  man- 
agement of  the  property  and  effects  of  infants,  lunatics, 
and  other  persons  who  are  incapal)le  of  managing  their  own 
affairs."'"  If  the  persons  interested  in  an  estate  are  thus 
incapable,  we  see  no  reason  why  the  power  of  disposing  of 
their  estate  may  not  be  delegated  to  an  administrator,  or 
even  to  a  stranger,  as  well  as  to  a  guardian.  The  two  Cali- 
fornia cases  last  cited  are  therefore  irreconcilable  in  princi- 
ple, and  one  or  the  other  ought  to  be  overruled  ;  for,  in 
each  case,  tiie  legislature  authorized  a  sale  to  be  made  with- 
out the  assent  of  the  owner  of  the  proi)erty,  and  in  the  a))- 
sence  of  any  disclosed  necessity  therefor.  In  each  case  the 
j)ersoii  desigiiatfid  by  the  legislature  was  invested  with  a 
discretion  to  make  the  sale  as  he  might  deem  best,  except 

■>'f>  lUanhiun  v.  Davidson,  ol  (Jul.  !!52. 
3"  Cochniu  V.  Vail  Surlay,  20  Wend.  :57:}. 


134  M)I1)    -UDICIAL    SALES. 

that  in  the  one  case  he  was  iiistructcd  to  promote  the  inter- 
est of  tliose  interested  in  the  estate,  while  in  the  other  no 
snch  instruction  was  given.  And  yet  the  latter  was  upheld 
and  the  foi-nier  sullered  to  tall,  and  this  upon  the  ground 
that  in  the  one  ease  the  person  selected  by  the  special  act 
was  a  ii'uardian,  and  in  the  other  he  was  an  administrator."* 
In  the  case  of  a  guardian's  sale,  the  persons  whose  property 
is  to  be  sold  are  within  the  reason  of  the  rule  as  stated  by 
Chancellor  Walworth.  In  the  case  of  a  sale  by  an  adminis- 
trator, the  heirs  nia}'-  or  may  not  be  within  the  reason  of  the 
rule  as  thus  stated.  If  all  the  owners  of  the  property  are 
not  sui  juris,  and  are  therefore  within  the  reason  of  the 
rule,  then  the  sale  should  be  sustained,  whetiier  the  agent 
selected  b}'  the  legislature  be  an  administrator  or  a  guardian, 
or  have  no  other  official  capa(;ity  than  that  given  him  by  the 
act.  If,  on  the  other  hand,  any  of  the  owners  be  sui  Juris, 
the  sale  must  fall,  if  made  against  his  will,  Avhether  the 
agent  appointed  to  make  it  is  a  guardian  or  an  administra- 
tor. Persons  regarded  in  law  as  capable  of  conducting 
their  own  afl^'airs,  are  entitled  to  act  for  themselves.  They 
are  the  sole  judges  of  the  advisa])ilitv  of  selling  their  prop- 
erty. The  legislature  can  not,  against  their  will,  empower 
any  other  person  to  sell  and  convey  their  interests,  even 
though  infants,  or  persons  not  in  esse  have  estates  and 
interests  in  the  same  parcels  of  property."^™ 

378  See  Brenhani  v.  Davidson,  51  Cal.  :552 ;  Brenliam  v.  Story,  39  Cal.  185. 
3'3  Brevoort  V.  Grace,  r)3  X.  Y.  245;  Shoeiiborgor  v.  School  Directors, 
?'2  Pa.  S.  U. 


INDEX. 


X.  B.— The  figures  refer  to  the  section  numbers. 


ACQUIESCEXCE. 

estoppel  arising  from,  41. 
DMIXISTKAT0R8  AXD  EXECUTORS, 

if  appointment  of  is  void,  a  sale  by,  is  equally  so,  2,  10. 

new,  can  not  be  appointed  without  removing  old,  7. 

validity  of  acts  of  administratoi-,  how  aftected  by  subsequent  probate 
of  Av-ill,  4. 

when  may  make  sales  without  leave  of  court,  9. 

must  qualifj-  before  acting,  10. 

purchase  by,  at  their  own  sales,  33. 

conveyances  by, 44. 

conveyances  b}',  when  void  because  not  in  proper  form,  45. 

conveyances  by,  when  compelled  or  re-formed  in  equity,  53. 

constitutionality  of  acts  ratilying  sales  by,  54-60. 

constitutionalitj'^  of  special  acts  authorizing  sales  by,  without  order 
of  court,  Gl-70. 
ADVERSE  POSSESSION. 

does  not  make  judicial  or  execution  sale  of  realt)'  void,  36. 
APPJ{AISEMEXT, 

sale  wltlioiit,  whether  void.  27. 
Al(  TIOX, 

failure  to  sell  at,  32. 


BOND, 

failure  to  give  held  fatal  to  i>robate  sail-,  22. 


C. 


CI..\SSIF[("ATI()X, 
of  void  sail's.  1. 


18(1  INDKX. 

COIJ.ATEK AL  ATTACKS, 

on  jurisdirlion  of  probate  courts,  4.  8. 

on  jurisdiotion  of  courts  generally,  8. 

nono  allowed,  to  show  error  or  t'laud  in  granting  order  of  sale,  14,  20. 
CONFIKJEATION  OF  SALE, 

notice  of  motion  for,  40. 

necessity  of,  41. 

conveyance  without,  is  void,  41.  ^ 

presumption  of,  41. 

ratilication  of  sales  never  confirmed  by  court,  41. 

eftect  of,  as  an  adjudication,  42. 

what  irregularities  are  waived  by,  42. 

does  not  validate  void  sales,  42. 

may  be  made  to  a  person  substituted  in  place  of  original  bidder,  42. 

by  subsequent  legislation,  54,  GO, 
CONSTITUTION  OF  UNITED  STATES, 

prohibition  of  ex  post  facto  laws,  60. 

prohibition  of  laws  impairing  obligations  of  contracts,  60. 

protection  of  vested  rights,  and  of  life,  liberty  and  property.  60. 
CONSTITUTIONALITY, 

of  laws  taking  property  from  one  person  and  giving  it  to  another,  54. 

of  laws  revoking  and  annulling  prior  grants,  54. 

of  laws  confirming  judgments  irregularly  entered,  55. 

of  laws  confirming  void  judgments,  56. 

of  laws  confirming  sales  void  for  informalities,  57,  58. 

of  laws  confirming  sales  void  for  fraud,  58. 

of  general  laws  authorizing  compulsory  sales,  62. 

of  special  laws  authorizing  involuntary  sales  denied,  6:5. 

of  special  laws  authorizing  involuntary  sales  sustained,  64,  65. 

of  special  laws  authorizing  sale  of  property  to  pay  debts,  67. 

of  special  laws  authorizing  sale  of  propert}'  of  co-tenants,  69, 

of  special  laws  authorizing  sale  of  property,  limitations  on,  70. 
CONVEYANCES, 

are  essential  to  transfer  of  legal  title,  43. 

within  what  time  may  be  made,  44. 

made  before  payment  of  purchase-money,  44. 

to  persons  not  authorized  to  receive,  are  void,  44. 

when  void  because  not  in  proper  form,  45. 

mistaken  recitals  do  )iot  make  void,  45. 

compelling,  in  equity,  53. 

reforming,  in  equity,  53. 

si)ecial  statutes  authorizing,  64. 
CURATIVE  STATUTES, 

validity  of,  under  constitution  of  United  States,  54,  60. 

with  reference  to  irregular  judic-ial  proceedings,  55. 

with  reference  to  void  judicial  proceedings,  56. 

with  reference  to  various  informalities  and  defects,  57,  58. 

with  reference  to  sales  void  for  fraud,  57. 

limitations  on  operation  of,  59. 


INDEX.  137 


D. 


DEFINITIONS, 

of  execution  sale,  1. 
of  judicial  sale,  1. 
of  jurisdiction,  1. 
of  legislative  sales,  (11. 
of  vested  rights,  59. 
DISQUALIFIED  JUDGE, 
acts  of,  when  void,  G. 


E. 


EQUriT", 

when  will  subrogate  purchaser  to  claims  discharged  tln-ough  his 
purchase,  49-51 . 

when  will  give  purchaser  lien  for  his  purchase-money,  50,  51. 

can  not  aid  defective  execution  of  statutory  powers,  53. 

can  not  correct  mistakes  in  execution  of  statutory  powers,  53. 

may  compel  the  execution  of  a  proper  conveyance,  53. 

may  sometimes  reform  conveyances  made  by  sherills,  administra- 
tors, etc.,  53. 
ESTOPPEL, 

against  avoiding  sales,  48. 
EXECUTION  SALES, 

defined, 1. 

irregularities  in,  are  not  ordinarily  fatal,  21. 

witliout  issue  of  any  wiit,  arc  void,  23. 

nnist  be  supported  by  a  valid  writ,  23. 

under  writ  issued  at  an  improper  time,  24. 

under  writ  issueil  after  death  of  a  party,  24. 

under  writ  insuflicient  in  form,  25. 

variancies  not  fatal  to.  25. 

witliout  h'vy.  2<;. 

without  inipiisiliou  or  appraisement,  27. 

whether  void  for  want  of  notice,  28. 

by  wlioni  may  be  made,  29. 

when  may  be  made.  :50. 

where  may  be  iiiadi-,  31. 

must  be  at  auction,  32. 

to  or  for  odiccr  conducting  tlu;  sale.  33. 

for  too  great  an  amount,  34. 

of  projierty  not  subject  to  sale,  is  void.  35. 

of  property  of  a  stranger  to  tbe  writ,  is  void,  35. 

of  projtcrty  in  adverse  [lossession,  '.W. 

made  en  masar.  ulictbcr  void,  37. 


13.S  INDEX. 

EXKCUTIOX  SAT.ES.— OrvH?jH«e(7. 

ctVi'ct  of  fraudulent  devices,  38,  39. 

continuation  of,  41 . 

rinlits  of  purchasoi'.  when  sale  is  void,  49,  50. 

curinii'  defects  in.  by  subsequent  legislation,  .'")4-(]0. 
EXECUriOX,  WKITS  OF, 

necessity  for,  23. 

when  may  issue,  24. 

form  of,  25. 

variances  in,  25. 
EXEMPT  niOPERTY, 

sale  of.  when  void.  35. 


F. 


FRAUD  OF  PURCHASERS, 

whether  it  makes  their  title  void,  or  voidable  merely,  38. 

not  to  injure  innocent  persons,  39. 

destroys  their  equitable  right  to  subrogation,  52. 

sale  void  for,  can  not  be  validated  by  legislature,  57. 


G. 

GUARDIAX^. 

when  maj-  sell  property  without  leave  of  court,  9. 
can  not  waive  service  of  citation  on  his  wards,  17. 
appointment  of,  when  void,  17. 
can  not  represent  conflicting  interests,  17. 
special  statutes  authorizing  sales  by,  63,  G4-70. 
special  statutes  validating  sales  by,  54-60. 


H. 

HEIRS  AND  DEVISEES, 

nature  of  their  interests,  54,  G5. 

constitutionality  of  special  statutes  authorizing  sales  of  their  prop- 
erty, 61-70. 


I. 

IXCOMPETEX'T  PERSONS, 

legislature  may  authorize  sale  of  their  property  by  special  statutes,  64. 
legislature  may  authorize  conveyance  of  their  property  by  special 
statutes,  G4. 


INDEX.  139 


IXQUISITIOX. 

sales  without,  held  void,  27. 
rRREGULAEITIES  IX  SALES, 

general  effect  of,  21. 

what  cured  by  confirmation,  42. 

what  cured  bj'  special  curative  statutes,  55,  57,  58. 


JUDICL^JL  PEOCEEDIXGS, 

effect  of  Avhen  void,  2. 

are  void  unless  court  has  jurisdiction,  2,  3. 

are  void  if  judge  has  no  authority  to  act,  6. 

jurisdictional  inquiries  concerning,  8. 

collateral  attacks  upon  S,  14.  20. 

acts  interfering  witli.  retrospectively,  55. 

acts  ratifying  irregular,  5."). 

acts  ratifying  void,  5G. 
JUDICIAL  SALES, 

defined,  1. 

irregularities  in,  not  usually  fatal.  21. 

eff'ect  of  want  of  notice  of,  28. 

by  whom  may  be  made,  29. 

at  what  time  may  be  made,  30. 

at  what  place  maj"  be  made,  31. 

failure  to  make  at  auction.  32. 

to  or  for  person  incompetent  to  bid.  33. 

for  too  great  an  amount,  34. 

must  be  confirmed  bj'  court,  41. 

right  of  purchasers  at  void,  to  subrogation,  49-51. 

special  statutes  confirming  and  validating,  54-60. 
JUEISDICTIOX, 

defined,  2. 

effect  of  want  of,  2. 

how  obtained,  3,  5. 

instances  of  want  of,  in  probate  courts,  4. 

not  presiuni'd  in  favor  of,  4. 

finding  of  court  in  favor  of  its  own  jurisdiction.  I. 

how  actpiired  over  plaintiff's,  5. 

how  acquired  over  dcfcndaiils,  5. 

liow  acfjuired  in  proceedings  in  rem,  5. 

how  acquired  in  jtn^ceedings  in  probate,  5. 

suspension  or  loss  of,  7. 

l»re>uni|)tiotis  concerning,  s. 

general  rules  governing  inquiries  concerning,  S. 

proceedings  void  for  want  of,  can  not  be  validated,  5(J. 


140 


INDKX, 


J.. 


LEGISLATIVE  SALES, 

described,  61. 

gonernl  luituro  of  statutes  authori/ing".  cd. 

general  remarks  coiieeruing  power  to  authorize,  62. 

eonstitutiouality  of  statutes  authorizing,  denied,  63. 

constitutionality  of  statutes  authorizing,  aHirnied,  64. 

by  guardians,  64. 

by  adniinistrators,  6."). 

by  trustees,  foreign  administrators  and  others,  66. 

to  pay  specific  debts,  67. 

misapplication  of  proceeds  of,  68. 

of  lands  of  co-tenants,  69. 

cases  where  they  can  not  be  authorized,  70. 
LEGTST>ATURE, 

restraints  upon  powers  of,  54. 

power  to  validate  void  sales,  54-60. 

power  to  pass  special  statutes  authorizing  sales,  61-70. 
LEVY, 

sale  without,  26. 
LOSS  OF  JURISDICTION, 

.by  abolishing  the  court,  7. 

by  adjournment  of  the  term,  7. 

by  grant  of  administration,  7. 

bj^  final  distribution  of  estate,  7. 

by  lapse  of  time  in  which  court  may  act,  7. 


:\r. 


MINORS, 

special  statutes  authorizing  sales  of  lauds  of,  64. 


NOTICE  OF  APPLICATION  TO  SELL. 

absence  of,  not  fatal  in  some  states,  15. 
absence  of,  is  generally  fatal,  16. 
can  not  be  waived  by  a  minor,  17. 
can  not  be  waived  by  a  guardian,  17. 
must  be  iiivcn  as  prescribed  by  statute.  17,  18. 
nuist  be  given  for  the  time  prescribed  bj'^  law,  19. 
NOTICE  OF  SALE, 

absence  of  and  defects  in,  28. 


INDEX.  141 

O. 

OATH. 

failure  of  administrator  to  take  before  selling,  is  fatal.  22. 
ORDERS  OF  SALE, 
when  unnecessar3%  9. 
nature  of  proceedings  to  obtain,  10. 
who  may  petition  for,  10. 
are  void  if  granted  without  a  petition,  11. 
are  void  if  granted  on  insufficient  petition,  11. 
can  not  be  collaterally  attacked  for  error,  14.  "20. 
arovoid  if  granted  \\'ithoui  proper  citation.  17-19. 
contents  of,  20. 

conclusive  as  adjudications,  20. 
to  be  set  forth  or  recited  in  deeds,  44. 


P. 

PARLLOIEXT, 

supreme  authoritj'  of,  62. 
PARTITIOX, 

constitutionalty  of  general  and  special  laws  authorizing,  GO. 
PERSONAL  PROPERTY, 

sale  of  without  leave  of  court,  9. 

deficiency  of,  essential  to  authorize  sale  of  realtj%  11. 

must  be  present  at  the  sale,  31. 
PETITIONS  FOR  ORDERS  OF  SALE, 

must  be  presented  by  proper  person,  10. 

order  without,  is  void,  11. 

order  on  insufficient,  is  void,  11. 

what  should  state,  11. 

statutorj'  provisions  concerning,  12. 

liberally  construed,  13. 

may  refer  to  other  papers  on  file.  13. 

need  not  be  true,  14. 

proceedings  on  said  to  be  in  rem,  15. 

jiroceedings  on  said  to  be  in  personam,  IG. 

notice  of  must  be  given,  17. 

notice  of  must  be  given  in  mode  prescribed,  18. 

notice  of  must  be  given  for  tlic  time  prescribed,  10. 
I*L.\('K  OF  SAL?:, 

••IVect  of  sale  at  another  place  31. 
POWERS  OF  S.\LE  IN  WILLS. 

who  may  execute.  0. 

prksumWions. 

of  jurisdiction.  I,  8. 

of  confirmation  of  sale,  41. 


142  INOKX. 

rmVATK  SALKS. 

wlion  void,  ;?2. 
riiOBATE   COURTS. 

inst:ii\oos  of  want  of  jmisdiclion,  4. 

jurisiUotiou  of,  not  piTj^mmHl,  l. 

timlings  of  jurisdiction,  effect  of,  4. 

how  may  acquire  jtn-isdiction  over  persons,  5. 

loss  of  jurisdiction  to  proceed,  7. 

prcsuuiplions  concerning  jurisdiction  of,  8. 

necessity  of  l<eepin,!^  up  jurisdictional  inquiries  concerning,  9.. 
PROBATE  PEOCEEDINGS. 

are  void  where  there  is  no  jurisdiction  over  subject-matter,  4, 

have  no  effect  beyond  the  state,  4. 

are  void,  if  supposed  decedent  is  living,  4. 

are  void,  if  taken  in  the  wi-oui;-  county,  4. 

are  void,  unless  jurisdiction  appears,  4. 

when  protected  from  collateral  assault,  4. 

jurisdiction  over  persons,  5. 

presumption  of  jurisdiction,  8. 

must  be  based  on  suflicient  petition,  11-13. 

said  to  be  in  rem,  15. 

said  not  to  be  in  rem,  IG. 

notice  to  persons  in  interest  must  be  given,  16. 

must  be  contirmed,  41. 
PROBATE  SALES. 

are  void  if  there  was  no  valid  grant  of  administration,  2,  7. 

are  void  if  the  estate  is  not  subject  to  the  probate  act,  4. 

are  void  if  the  court  had  no  jurisdiction  of  the  subject-matter,  4.. 

are  void  if  made  under  order  of  court  of  another  state,  4. 

are  void  if  the  supposed  decedent  is  living,  4. 

are  void  if  not  authorized  by  the  court,  9. 

are  void  if  petitioned  for  by  person  not  authorized  to  petition,  10. 

are  void  if  there  was  no  petition  for,  11. 

are  void  if  the  petition  was  insuUicient,  11. 

said  to  be  in  rem,  15. 

void  for  want  of  notice  to  heirs  of  application  for  order  of  sale^ 
16-19. 

void  for  failure  of  administrator  to  take  oath  before,  22. 

void  for  failure  of  administrator  to  give  sale  bond,  22. 

void  for  want  of  appraisement,  27. 

void  for  want  of  notice  of  sale,  28. 

by  whom  maybe  made,  2'J. 

made  at  an  improper  time,  30. 

made  at  an  improper  place,  31. 

made  in  private,  32. 

made  to  person  not  allowed  to  bid,  33. 

made  for  too  great  a  sum,  34. 

of  property  not  subject  to  sale  is  void,  35. 


INDEX.  14 

PEOBATE  SAL^S— Continued. 

of  pvopert.v  not  ordered  to  be  sold  is  void,  35. 

of  property  in  advei'se  possession,  36. 

made  en  masse,  37. 

effect  of  fraudulent  practices,  38. 

effect  of  secret  frauds,  39. 

effect  of  misappropriation  of  proceeds  of  sale,  39. 

effect  of  confirmation  without  notice,  40. 

necessity  of  confirmation,  41. 

presumption  of  confirmation,  41. 

right  of  purchaser  to  subrogation,  40-51 . 

statutes  validating  invalid,  54-60. 
PKOCEEDS  OF  SALE, 

purchaser  not  bound  to  see  to  proper  application  of,  39,  68. 
PUKCHASERS, 

who  disqualified  from  being,  33. 

fraudulent  practices  by,  38. 

not  affected  by  secret  frauds,  39. 

not  bound  to  see  to  applications  of  proceeds  of  sale,  39. 

at  void  sales,  need  not  pay  their  bids,  46. 

can  not  resist  action  for  bid  because  of  failure  of  title,  46. 

right  to  recover  money  paid,  47. 

right  to  urge  estoppel  arising  from  ratification,  48. 

right  to  subrogation  denied,  49. 

right  to  subrogation  sustained,  50,  51. 

right  to  hold  lands  till  purchase-money  is  refunded,  51. 

right  to  accounting  on  equitable  principles,  51. 

fraud  of,  destroys  right  to  subrogation,  52. 


R. 


RATIFICATION, 

of  sales  never  approved  in  court,  41. 

of  void  sales,  48. 

of  void  sales  by  receiving  surplus  proceeds,  48. 

of  void  sales  by  acquiescence,  48. 

of  void  sales  by  minors,  48. 

of  void  sales  by  curative  acts,  54-GO. 
RETKOSPECTI V E  LA W.S, 

constitutionality  of,  .54. 


o 


SUBROOATIOX, 

purclias(!r's  riglit  to,  denied,  1!». 
purchaser's  riglit  to,  sustained,  50,  51, 


144  INDEX. 

SrECIAT.  STATl'TES, 

«'ontirniing  invalid  sales  and  proceedings,  54-GO. 

for  sale  of  lands  of  minors  proliibitod  in  some  states,  G2. 

for  compulsory  sale  of  lands,  objections  to,  G3. 

See  CuKATivic  Statutks. 

See  Constitutionality. 

vSee  Legislative  Sales. 


T. 

TiivrE. 

when  sale  may  bo  made.  iiO. 
when  execution  may  issue,  24. 
TRUSTEES, 

special  acts  authorising  sales  by,  GO. 
purchase  bj"  at  their  own  sales,  W^. 

V. 

VESTED  RIGHTS, 

not  to  be  divested  by  tegishition,  Hi. 
what  are,  H9. 
VOID  SALES, 

classified  and  described,  1. 

are  those  based  on  void  judgments  or  orders,  2. 

are  those  made  in  probate  without  valid  grant  of  administration,  2. 

are  those  made  Avhere  court  had  no  jurisdiction,  3,  4. 

are  those  made  without  authority  from  court,  9. 

not  validated  by  order  of  confirmation,  42. 

ratification  of,  48. 

right  of  purchaser  at,  to  resist  payment  of  bid,  4G. 

right  of  purchaser  at,  to  recover  money  paid,  47. 

right  of  purchaser  at,  to  subrogation,  49-51. 

statutes  validating,  54-60. 

See  CiRATivE  Statutes. 

See  Execution  Sales. 

See  .Tui>icial  Sales. 

See  Legislative  Sales. 

See  Probate  Sales. 


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